The Issue At issue in this proceeding is whether Respondent Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, Section of General Regulation has violated Section 120.535 F.S. by adoption of a policy which meets the definition of a "rule" under Section 120.52(16) F.S., without complying with the rulemaking procedures established by Section 120.54 F.S.
Findings Of Fact Petitioner originally applied and was licensed as a yacht and ship salesman in June, 1992. To be a salesman, one must be associated with a licensed broker who prominently displays the salesman's license. On April 15, 1994, Petitioner contacted Respondent agency by telephone to discuss renewal of his salesman's license issued June 3, 1992 and due to expire under its own terms on June 3, 1994. At that time, Kathy Forrester told Petitioner that his file reflected that his license had been "cancelled" effective March 10, 1993 due to a letter received on or about March 1, 1993 from Petitioner's employing broker, Frank Stanzel. Mr. Stanzel's letter showed that he was relocating his business from Miami to Ft. Lauderdale and that he wanted his two salesmen's licenses transferred to the new location. He enclosed with his letter the two salesmen's licenses for agency action, as required by agency rules. Mr. Stanzel further reported that Petitioner had left his employ on October 19, 1992, taking his license with him, so Mr. Stanzel could not return Petitioner's license to the agency. On March 22, 1993, five months after Mr. Stanzel heard the last of Petitioner and approximately three weeks after he notified the agency of Petitioner's leaving his employ, Mr. Stanzel's broker's license expired. Under the terms of the agency rules, Mr. Stanzel was required to apply for a new license. He applied. His broker's license was not renewed retroactively, and his new license became effective August 30, 1993. For approximately five months, from March 22, 1993 to August 30, 1993, Mr. Stanzel was not a licensed Florida broker. Neither Mr. Stanzel nor the Respondent agency notified Petitioner of this fact nor did anyone notify Petitioner at that time that his salesman's license was deemed "cancelled" during the broker's lapse. After finding out for the first time on April 15, 1994 that the agency presumed his salesman's license "cancelled" by Mr. Stanzel's notification that Petitioner had taken his salesman's license and left Mr. Stanzel's employ, Petitioner and his father prevailed upon Mr. Stanzel to execute an affidavit dated May 19, 1994 to the effect that Mr. Stanzel had misunderstood, now believed Petitioner had been diligently working at yacht sales after October 19, 1992, and wanted Petitioner's salesman's license reinstated. The affidavit was submitted to the agency. Although Ms. Forrester had misgivings about the affidavit, the agency reinstated Petitioner's salesman's license effective April 29, 1994, after receiving the affidavit (TR 25-28). The reinstated license still had the original expiration date of June 3, 1994. The agency did not reinstate Petitioner's salesman's license retroactive to October 19, 1992 when Petitioner went into construction work fulltime, to the date of Mr. Stanzel's original broker's license expiration, or to the date of Mr. Stanzel's new broker's license. Petitioner accepted his salesman's license as reinstated. Petitioner did not renew his salesman's license on June 3, 1994, so it expired by its own terms. On July 21, 1994, Petitioner filed an application to be licensed as a yacht and ship broker, together with the required bond, fee, and fingerprints. On August 2, 1994, Peter Butler, Head of the Section of Yacht and Ship Brokers, wrote Petitioner a deficiency notice, explaining that the agency regarded Petitioner's salesman's license "cancelled" during the lapse of his employing broker's license. The agency has no rule which specifically states that when an employing broker's license expires, his salesmen's licenses are automatically cancelled. The language employed in the deficiency notice was, "any salesman licenses held by [the employing broker] were considered cancelled (sic) for that period of time [the period while the employing broker's license was expired/lapsed] because they did not have an actively licensed broker holding their license." [Bracketed material added for clarity.] This language is the focus of this proceeding. The deficiency notice did not refer to the prior "cancellation" of Petitioner's salesman's license based on Mr. Stanzel's March 1, 1993 notice that Petitioner had left his employ effective October 19, 1992. The deficiency notice cited Section 326.004(8) F.S. [1993] which provides: Licensing.- (8) A person may not be licensed as a broker unless he has been a salesman for at least 2 consecutive years, and may not be licensed as a broker after October 1, 1990, unless he has been licensed as a salesman for at least 2 consecutive years. Bob Badger, an agency investigator, submitted a report to Mr. Butler dated September 1, 1994 expressing his opinion that even with Mr. Stanzel's after-the-fact affidavit, Petitioner's salesman's license would have been interrupted by the fact that he had no licensed broker holding his salesman's license during Mr. Stanzel's broker's license lapse of five months. He further concluded that Petitioner's salesman's license was "suspended" for a short period for not renewing his salesman's license bond. After review of the investigation report, on September 19, 1994, the agency issued its Intent to Reject Petitioner's broker's application pursuant to Rule 61B-60.002(6) F.A.C. alluding to the deficiency notice and citing Section 326.004(8) F.S., for Petitioner's failure to complete two consecutive years as a salesman. Section 326.004(14)(a) and (b) F.S. and rules enacted thereunder clearly place on the broker the responsibility of maintaining and displaying the broker's and salesmen's licenses as well as providing for a suspension of a salesman's license when a broker is no longer associated with the selling entity. Typically, salesmen turn in their licenses through the original broker for cancellation by the agency and receive new ones when they move from one broker's oversight to another's. Salesmen who are employed by one broker also switch their salesman's licenses to another active broker whenever the first broker disassociates from a yacht sales company and moves to another company, quits, retires, or lets his broker's license lapse. Due to the common dynamics of the employment situation whereby salesmen are under the active supervision of their employing broker in the company office, they usually know immediately when a broker's license is in jeopardy or the broker is not on the scene and supervising them. This knowledge is facilitated by the statutes and rules requiring that all licenses be prominently displayed in the business location. Anybody can look at anybody else's license on the office wall and tell when it is due to expire. If licensees are in compliance with the statutes and rules, no active salesman has to rely on notification from the agency with regard to the status of his own or his broker's license. In the present case, Petitioner removed himself from all contact with Mr. Stanzel as of October 19, 1992. Therefore, he did not know what was occurring in the office or with any licenses. All agency witnesses testified substantially to the effect that since they have been employed with the agency and so far as they could determine since its inception, agency personnel have relied on Sections 326.002(3), 326.004(8), 326.004(14)(a) and (b) F.S. and Rules 61B-60.005 and 61B-60.008(1)(b) and (c) F.A.C. to preclude licensing someone who has not been actively supervised by a Florida licensed employing broker for two consecutive years. More specifically, agency personnel have always applied Sections 326.004(14)(a) and (b) to place on the broker the responsibility of maintaining and displaying the broker's and salesman's licenses as well as providing for a suspension of the salesman's license when his broker is no longer associated with the sales entity. The agency has always interpreted the word "broker" as used in Chapter 326 F.S. and Chapter 61B-60 F.A.C. to mean "Florida licensed broker." See also, Section 326.002(1) and 326.004(1) F.S. and Rule 61B-60.001(1)(g) F.A.C. These interpretations are in accord with the clear language of the applicable statutes and rules. Petitioner unsuccessfully attempted to show that he had received treatment different than others similarly situated.
Findings Of Fact Felix Robaina is a "prevailing small business party", as provided in section 57.111 F.S.. On March 12, 1987, the Barber's Board filed its Final Order approving and adopting the Hearing Officer's Recommended Order that Felix Robaina be found not guilty of the violations alleged and dismissing the Administrative Complaint. An application for award of attorney's fees and costs was timely filed with the Division of Administrative Hearings on March 25, 1987. The parties have stipulated that the time spent by Mr. Robaina's attorney, Isidro Garcia, 19.25 hours, and hourly rate claimed, $100.00, are reasonable. Costs were expended in the amount of $67.35, reflecting the cost of a copy of the transcript and expenses of mailing.
Findings Of Fact Petitioner owns and operates an ACLF in Tampa, Florida, and has been continuously licensed by the Respondent as an ACLF since at least 1984. The Administrator, President and major stockholder of Petitioner is Ruby Byrd. On or about October 9, 1987, Petitioner applied for license renewal, and the Respondent requested additional information by letter dated October 15, 1987. According to Respondent's witness, John C. Morton, the Petitioner's license expired on December 25, 1987. However, the Department sent letters purporting to deny Petitioner's renewal on March 28 and May 12, 1988, which both state that Petitioner's license expired on March 25, 1988. This discrepancy between the testimony offered by Respondent and the Respondent's letters of denial is unexplained, and no finding can therefore be made as to when the Petitioner's most recent license did, in fact, expire. ACLF licenses are issued for a period of one year, and must be renewed annually. The sole specific reason for renewal denial set forth in the Respondent's March 28, 1988, letter is the Petitioner's "failure to provide proof of business liability insurance and proof of surety bond coverage." The Respondent's May 12, 1988, letter specifically deleted this reason as a basis for renewal denial, and superseded the previous letter by setting forth three reasons for denial. First, it is alleged that Ruby Byrd was arrested for grand theft from a former resident of the ACLF and was awaiting trial. Second, it is alleged that the facility lacks the financial ability to operate. Third, it is alleged that the facility has committed multiple and repeated violations as evidence by surveys and follow-up visits from 1985 through 1987. The only witness called as a representative of Respondent testified that he did not make a recommendation regarding Petitioner's license renewal application. The parties have stipulated that Ruby Byrd was found not guilty of the charge of grand theft. Competent substantial evidence was not presented to support the charge that Petitioner lacked the financial ability to operate. This ACLF has been in operation since at least 1984, and the evidence did not show the facility's failure to meet any of its financial obligations. Evidence produced by the Respondent was unclear in its distinction between Ruby Byrd, individually, and the corporate Petitioner in this case. The parties stipulated that representatives of the Respondent found what they believed to be violations which are enumerated in survey deficiency reports prepared in 1985 through 1987. The evidence establishes that all deficiencies noted in reports prepared in 1987 had been either corrected, administratively deleted, or the time for corrective action had not arrived by the time of hearing. Survey reports prepared prior to 1987 predominately indicate corrective action taken prior to 1987. In any event, these reports which precede the license year for which renewal is at issue in this case, are irrelevant, as is a report of a survey conducted subsequent to the Respondent's May 12, 1988 letter. The Petitioner operated under a conditional license issued by Respondent from March 26, 1988 until September 25, 1988. There is no evidence that Respondent issued any conditional license or otherwise responded to Petitioner's renewal application for the period between December 25, 1987 and March 26, 1988, assuming testimony at hearing is correct and this license expired on December 25, 1987. Similarly, there is no evidence that the Respondent has issued a conditional license, or otherwise responded to the Petitioner's renewal request for the period of September 25, 1988 until the date of hearing, which period of time would be relevant regardless whether the Petitioner's license expired in December, 1987, or March, 1988. According to the Respondent's witness, Petitioner's facility does not present any danger to the public health, safety and welfare. The Respondent does proceed against licensed ACLFs, and seek to administratively suspend or revoke their licenses during a period of licensure.
Recommendation Based upon the foregoing, it is recommended that the Respondent issue a Final Order approving the Petitioner's application for renewal of its ACLF license at issue in this case. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of November, 1988. DONALD D. CONN 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 30th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3036 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted and Rejected in part in Finding of Fact 3. Adopted and Rejected in part in Findings of Fact 2 and 7. Adopted in Finding of Fact 4. Rejected as unnecessary. Adopted in part in Finding of Fact 6, but otherwise Rejected as unnecessary. Adopted in Finding of Fact 5. Rejected as a conclusion of law and not a finding of fact. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected in Finding of Fact 2 Adopted in part in Finding of Fact 2. 4-5 Rejected as irrelevant since the Respondent has the burden of proof in this case as discussed in the conclusions of law. 6-9 Rejected in Finding of Fact 6, and otherwise as irrelevant. Rejected as irrelevant and as not supported by competent substantial evidence. Rejected in Finding of Fact 5. COPIES FURNISHED: William Park, Esquire 8001 North Dale Mabry Building 601, Suite B Tampa, Florida 33614 Edward Haman, Esquire Office of Licensure and Certification 7827 North Dale Mabry Tampa, Florida 33614 Sam Power, Clerk 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
