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.
The Issue Whether Respondent, a licensed yacht broker, committed the offenses set forth in the Notice to Show Cause dated June 20, 1994, and the penalties, if any, that should be imposed.
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 Brokers' Act, Chapter 326, Florida Statutes. At all times pertinent to this proceeding, Respondent has been a licensed Yacht and Ship Broker pursuant to the provisions of Chapter 326, Florida Statutes. Respondent resides in and has his principal place of business in Martin County, Florida. Respondent's corporation, Rampage of Stuart, Inc., has been licensed by Petitioner at all times pertinent to this proceeding. The parties stipulated that Respondent's corporation was, at times pertinent to this proceeding, doing business as Stuart Cay Marina, a fictitious name that had not been registered with the Petitioner. The parties stipulated that Respondent was guilty of violating the provisions of Section 326.004(2), Florida Statutes, as alleged in the Notice to Show Cause dated June 20, 1994. The parties also stipulated that the appropriate penalty for this violation is an administrative fine in the amount of $500.00. James Withers began working for Respondent at Stuart Cay Marina in January 1994. At the time he began working at Stuart Cay Marina, Mr. Withers was not licensed under the Yacht and Ship Brokers' Act. Respondent knew or should have known that Mr. Withers was not licensed when he first became employed at Stuart Cay Marina. On January 27, 1994, Mr. Withers attended an educational seminar sponsored by Petitioner where the attendees received instruction as to the requirements for licensure as a salesman or a broker under the Yacht and Ship Brokers' Act. The successful applicant must submit a completed application form, a completed fingerprint card, the proper application fee, and a surety bond. The Petitioner's processing of the application includes having the Federal Bureau of Investigation (FBI) run a fingerprint check on the applicant. The attendees of the educational seminar were told that the application fee had increased from $538.00 to $539.00 as of December 20, 1993, due to a $1.00 increase in the fee charged by the FBI to process fingerprint cards. Mr. Withers and the Respondent knew, or should have known, that Mr. Withers could not act as a salesman until after his license had been issued. In late January 1994, Mr. Withers applied for licensure as a salesman pursuant to the Yacht and Ship Brokers' Act. Because the application form used by Mr. Withers reflected the old application fee, Mr. Withers submitted a check in the amount of $538.00 with his application and fingerprint card. There was no evidence as to where Mr. Withers had obtained this application form. Mr. Wither's application package was received by Petitioner's Finance and Accounting Office on February 4, 1994. The check for the application was deposited and the application forwarded for further processing. On February 7, 1995, Mr. Withers was advised by mail that his application was deficient since the application fee was short by $1.00. This letter, from the Petitioner's Yacht and Ship Section, advised Mr. Withers that the $1.00 was needed to continue the application process. Mr. Withers forwarded his $1.00 check, dated February 9, 1994, to the Petitioner to correct this deficiency. This check was received and deposited by Petitioner's Finance and Accounting Office, which is located in the John's Building in Tallahassee, on February 17, 1994. The Finance and Accounting Office released the application package for further processing on February 18, 1994. From the Finance and Accounting Office, the application package went to the Division Director's Office located in the Warren Building in Tallahassee. From that office the application package was sent to the Yacht and Ship Section located in the Bloxham Building in Tallahassee, where it was received February 21, 1994. Licenses are not completely processed until after the Yacht and Ship Section receives notification that the entire application fee has been paid. Processing of Mr. Withers' application was completed by the Yacht and Ship Section and his license was issued on February 21, 1994. Mr. Withers and the Respondent knew, or should have known, that Mr. Withers had not received his license from the Petitioner as of February 18, 1994. 1/ There was no evidence that either man had reason to believe as of February 18, 1994, that the license had been issued and was being forwarded by mail. Both men correctly believed that Mr. Withers had substantially complied with the licensure requirements as of February 18, 1994, and that the license would be issued at some juncture since the only deficiency had been corrected. Mr. Withers represented Respondent at the Sixth Annual Miami Brokerage Yacht Show on February 18, 1994, where he acted as a salesman within the meaning of the Yacht and Ship Brokers's Act. Respondent permitted Mr. Withers to use his company name at this show. On Friday, February 18, 1994, James Courchaine and Peter Butler, in their official capacities as employees of the Petitioner, located Mr. Withers at the boat show and inquired as to whether he was licensed. Mr. Withers told them that he had completed his application package and was merely waiting to receive his license in the mail. Mr. Butler thereafter called his office in Tallahassee and learned that Mr. Withers' check for $1.00 may have been received, but that the application had not been received by the Yacht and Ship Section and that the license had not been issued. Mr. Butler informed Mr. Withers that the earliest his license could be issued was Monday, February 21, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings and conclusions contained herein, that imposes an administrative fine in the amount of $500.00 against Respondent for the violation of Section 326.004(2), Florida Statutes, and that imposes an additional administrative fine in the amount of $500.00 against Respondent for the violation of Section 326.06(2)(e)7, Florida Statutes. DONE AND ENTERED this 8th day of January 1996 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 8th day of January 1996.
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
The Issue Whether Respondent's license should be revoked as set forth in the Notice of Intent to Revoke License.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating yacht salesmen and brokers. Such authority includes the discipline of yacht salesman as set forth in Chapter 326, Florida Statutes. At all times material to the allegations of this case, Respondent has been licensed as a yacht salesman in the State of Florida. Respondent first applied for licensure in June of 1994. This license request was granted and Respondent was issued a license for the two-year period 1994-1996. In June of 1996, Respondent applied to renew the license. This license request was also granted and Respondent was issued a yacht salesman's license for the period 1996-1998. On or about April 28, 1997, Respondent was convicted of conspiracy to commit wire fraud, a federal violation, and a felony. As a result, Respondent was sentenced and incarcerated. In July of 1998, Respondent applied to the Department to renew the yacht salesman's license. Based upon the information submitted to Petitioner at the time he sought renewal, the Department had no direct information of the felony conviction. In telephone conversations with the Department staff, Respondent did not disclose he had been incarcerated, was living in a halfway house as part of his sentence, and was a convicted felon. In August of 1998, a third party advised the Department that Respondent had the felony conviction. Thereafter, upon such notice, Petitioner took action to seek revocation of Respondent's license. The license renewal for 1998 filed by Respondent was executed on July 7, 1998. Technically, his license expired on June 14, 1998, but he was afforded a grace period within which to process the renewal. To this end the Department attempted to accommodate the renewal applicant. On the license renewal card Respondent submitted conflicting answers. To question (3) which read: Have you been convicted of a crime, found guilty, or entered a plea of nolo contendere, since initial licensure? Respondent answered "Y." To question (4) which read: Has any judgment or decree of a court been entered against you or is there now pending any case in this or any other state, in which you were charged with any fraudulent or dishonest dealing? Respondent answered "N." An undated letter from Respondent accompanied the renewal card which referred to a prior correspondence with the Department of June 6, 1996, as the explanation for question (4). As to question (3), the letter stated: "a conviction was made on 4/28/98 in the U.S. District Court Southern Florida." Respondent's answer to question (4) was false. Moreover, the manner in which Respondent answered the two questions did not disclose that Respondent had been convicted of a felony or conspiracy to commit wire fraud. More telling of Respondent's attempt to mislead the Department, however, is his failure to disclose any of the foregoing circumstances during telephone conversations with staff seeking to assist him to renew the license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order revoking Respondent's license. DONE AND ENTERED this 29th day of June, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 29th day of June, 1999. COPIES FURNISHED: Philip Nowick, Director Florida Land Sales, Condos, Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Scott K. Edmonds, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Tracy J. Sumner, Esquire Tracy J. Sumner, P.A. 1330 Thomasville Road Tallahassee, Florida 32303
Findings Of Fact On January 31, 1984, the subject vessel, a 1969 sixty-five foot Hargrave Halmatic motor yacht, was purchased by Nelson Gross as President and principal of the corporation, Binghamton Too, Inc., for $457,500 in Houston Texas. It was financed through a Connecticut bank. The closing was held in Mr. Gross' New Jersey office. No sales or use tax has been paid on the yacht in Florida or in any other state. Mr. Gross' initial intent was to operate his new purchase as a commercial charter boat in conjunction with the "Binghamton," a ferryboat permanently moored and operating in Edgewater, New Jersey, as a floating restaurant. To get the new motor yacht there, Mr. Gross directed that it be brought to New Jersey around the Florida coast under its own power. The motor yacht reached Florida on February 17, 1984, but en route from Texas an unexpected vibration had arisen which required emergency repairs. These repairs were commissioned at Bradford Marine, Ft. Lauderdale, Florida, where the motor yacht remained, except for sea trials in connection with the vibration problem, until the first week in April, 1984. A cracked strut was diagnosed as the cause of the vibration problem. Repair costs of this emergency problem totalled $5,975. The balance of charges incurred at Bradford Marine, Ft. Lauderdale, was $21,729, including dockage. Many more of the repairs catalogued by Respondent's Exhibit 5, the Bradford Marine records for this period, were clearly voluntary, discretionary, and cosmetic in nature. The majority were of a non-emergency nature. The vessel, by then relettered "Binghamton Too," left Florida waters approximately April 20, 1984. "Binghamton Too" next spent approximately three weeks at Thunderbolt Marine Industries in Georgia at an approximate cost of $12,000. There, a strap was fabricated to hold the strut and the yacht proceeded on to New Jersey. The "Binghamton Too" began its charter business as part of the "Binghamton" operation in Edgewater, New Jersey on May 5, 1984. Seventy-five to eighty charters were accomplished between May, 1984 and October, 1984 under New Jersey state and local chartering, transit liquor, and environmental licenses and under U.S. Corps of Engineers permits. "Binghamton Too" returned to Florida waters sometime on or before October 25, 1984, when it was sighted at the Indian River Causeway Bridge. On October 26, 1984, it was sighted at Flagler Bridge in West Palm Beach. Thereafter, it went on to the Lantana Boat Works Marina, Lantana, Florida, for repairs. Lantana is the location of the yacht's original builder, whose equipment and expertise were preferable to that of other boatyards for certain strut repairs due to the peculiar nature of this type of yacht. After those repairs, the yacht was anchored in Palm Beach from January 1985 to April 1985. Although Mr. Gross testified that the strut repairs of necessity had to be done in the Lantana boatyard, his view is not necessarily conclusive of this issue because he admitted "Binghamton Too" was the first yacht he had ever purchased, because he was vague about equating desirability and necessity without any supporting direct expert testimony, and because of the facts found infra. The Lantana repair records from October 29 to December 31, 1984 show $42,521.82 in repairs, of which only $2,500 pertain to fabrication of a strut. Again, the majority of repairs was to refurbish and paint the vessel. Mr. Gross spent approximately October 1984 to April 1985, October 1985 to April 1986, and October 1986 to April 1987 in his father's home in West Palm Beach, Florida. By his own testimony, he confirmed that he established the "technical" office for his "Binghamton Too" business there. He applied, in early December 1984, for a Florida sales tax registration to operate a charter business, representing Palm Beach as his place of business. The account was established January 1, 1985 with the account number of 60-22-080051-61. The captain and mate of the "Binghamton Too" also wintered in Florida each of these years. On December 6, 1984, Mr. Gross wrote the State of New Jersey's Division of Taxation that the yacht's "principal location and headquarters are in West Palm Beach, Florida where it maintains an office and full-time employees," thus successfully arguing that the "Binghamton Too" should be exempt from New Jersey's registration requirements for any vessel residing in that state in excess of 180 days. This correspondence was in connection with a tax problem of the mother ship "Binghamton," still moored in New Jersey. Mr. Gross further represented that Florida was "Binghamton Too's" primary location with trips to the Bahamas." For most of the period from late December, 1984 to early April, 1985, the yacht was in Palm Harbor Marina, West Palm Beach, Florida, the first time not in repairs, and clearly could have returned to New Jersey under its own power had Mr. Gross chosen to do so. From January 24 to March 26, 1985, the boat was in operation, as sighted at the Pompano Beach and Fort Lauderdale bridges. From April 1985 until October of 1985, the yacht was operated as part of Petitioner's commercial charter operation in New Jersey, which included over 100 charters during this time period. Nonetheless, on June 10, 1985, Mr. Gross purchased a boat slip at Ocean Reef Club in Key Largo, Florida. This slip was later sold. Upon the foregoing Findings of Fact 6-12, which clearly establish a pattern of wintering the yacht in Florida waters, it is inferred that, despite Mr. Gross' testimony that it was "necessary" to have "Binghamton Too's" strut repaired in late 1984 by the original Florida manufacturer of the yacht, its presence in Florida from October 1984 until April, 1985 was primarily and substantially due to the preference of Mr. Gross, Petitioner's President, and not due to necessity or emergency. In October of 1985, the yacht returned to Florida where it remained until April of 1986. During this time, the boat underwent further repairs, including the complete repainting of the hull, the need for which Mr. Gross attributed to the old paint being cracked and shaken off by the vibration of the yacht. From April 1986 until October of 1986, the yacht was operated as part of Petitioner's commercial charter operation in New Jersey, which included over 100 charters during this time period. The yacht returned to Florida in October, 1986, and again remained in Florida until early April, 1987, when it left for New Jersey. In late October 1987, the yacht returned to Florida where it was traded in as part of the consideration for a larger yacht in November of 1987. The closing date was December 30, 1987. The cash equivalent received by Petitioner as credit on the trade-in was $100,000. In all, Petitioner asserts that over $200,000 was spent by the corporation on the "Binghamton Too" before it was traded. Shortly after buying the "Binghamton Too", Petitioner had begun trying to sell it for the highest price obtainable. These sales efforts included large ads in national yachting publications and listings with active yacht brokers. The highest outright offer received by Petitioner was $75,000. However, this was Mr. Gross' first sales effort of this kind, and his opinion testimony that the "Binghamton Too" was not bought from the Petitioner outright and at a good price because of latent defects and cost of repair is neither credible nor persuasive since his opinion does not possess the reliability of an expert in assessing whether it was the condition of the yacht, its unusual "Halmatic" type, or some other factor which made the "Binghamton Too" undesirable to potential purchasers. The Florida Department of Revenue issued a Notice of Delinquent Tax January 30, 1987, of five-percent use tax upon the purchase price plus 25 percent penalty. Interest was figured at 12 percent per annum. Petitioner timely protested. The agency conceded that the purchase price on the original notice was mistakenly listed at $475,000, that the assessment appropriately should have been on $457,500 (see Finding of Fact No. 1) and that the State presently claims only the tax amount of 5% of Petitioner's initial $457,500 purchase price at $22,875, the 25 percent penalty at $5,719, and interest on the tax from February 18, 1984, to June 18, 1989 at $14,650. (Interest accrues at $7.52 daily.) The total assessment through June 18, 1989 is $43,234.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Revenue enter a Final Order affirming the assessment of $22,875, with 25% penalty and interest at $7.52 per day from February 18, 1984 until paid. DONE and RECOMMENDED this 11th day of August, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 11th day of August, 1989. APPENDIX TO RECOMMENDED ORDER Upon consideration of Section 120.59(2) Florida Statutes the following rulings are made upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2,3, 5, 10, 11, 13, 14, 15, 17, 18, 19, 21, 22: Accepted except to the degree not proven. 4: Rejected as stated because not supported by the greater weight of the evidence as a whole. 6, 12: Rejected in part as not proven, in part as subordinate and unnecessary, and in part as to the conclusion-if law as "latent." 7, 8, 9: Accepted except as subordinate and unnecessary to the facts as found. 16: Accepted that Mr. Gross testified to this amount, however, the evidence does not support the amount precisely nor that it all went to "repairs." 20: Accepted as modified to better express the record as a whole. Respondent's PFOF: 1: Accepted, but as a Conclusion of Law. 2, 3, 4, 9, 10, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23: Accepted. 5: Accepted in substance; what is not adopted is either mere recitation/characterization of testimony, is cumulative, or is subordinate to the facts as found. 6: Accepted but subordinate and unnecessary to the facts as found. 7: Sentence 1 is accepted. The remainder is rejected as mere legal argument or subordinate to the facts as found. 8, 11: Accepted as modified to conform to the record as a whole. Mr. Gross testified to a May 5, 1984 date for No. 8. 18: Except for mere legal argument, accepted. 24: Accepted upon the terms set forth in the Recommended Order. 25: Except as subordinate and unnecessary, accepted. COPIES FURNISHED: Gene D. Brown, Esquire 3836 Killearn Court Tallahassee, Florida 32308 Linda G. Miklowitz, Esquire Department of Legal Affairs Tax Section, The Capitol Tallahassee, Florida 32399-1050 William D. Moore, General Counsel Department of Revenue 203 Carlton Building Tallahassee, Florida 32399-0100 Katie D. Tucker Executive Director Department of Revenue 102 Carlton Building Tallahassee, Florida 32399-0100
