The Issue The issue in this case is whether Respondent, Hawaiian Inn Beach Resort, COA (the “Resort”), discriminated against Petitioner, Hanan Aysheh, on the basis of her national origin and/or handicap, in contravention of the Florida Fair Housing Act.
Findings Of Fact Hanan Aysheh (also known as Nikki) is a woman of Palestinian descent who is a United States citizen, having been born in California. She also claims a disability, post- traumatic stress disorder (PTSD), but did not provide any documentary proof for that assertion at final hearing. The Commission’s Determination of No Cause report includes reference to a medical document submitted to the Commission by Ms. Aysheh, but neither the medical document nor any other supporting evidence was introduced at final hearing. Based upon the ultimate finding herein, Ms. Aysheh will be presumed to have a disability for purposes of this Recommended Order. No persuasive evidence was presented that the Resort had any knowledge of Ms. Aysheh’s alleged PTSD. The Resort is a Florida condominium owners’ association that operates and maintains the common areas of the property known as the Hawaiian Inn. The Hawaiian Inn is located at 2301 South Atlantic Avenue, Daytona Beach, Florida. It consists of a five-story building containing 208 condominium units of different sizes, a large swimming pool and deck, and a parking lot. The units are privately owned by individuals rather than by the Resort. An overseer, John Witherow, loosely manages the property and maintains communications with a hired company which provides safety and security around the premises. The Resort provides a rental office on the ground floor where some 80 of the privately owned units are rented out to interested individuals on a short-term basis, much like a hotel. The other units are leased out by their owners directly to third-party lessees; the Resort does not get involved in the lease arrangements. Unit 323 at the Resort is owned by the Owners, who reside in Jensen Beach, Florida. Unit 323 is a small, efficiency apartment-style residence. Mrs. Caroline Dunn is employed as a housekeeper by several people who own units at the Hawaiian Inn, including the Owners. She will sometimes agree to act as an informal agent for the owners of units who want to lease them to third parties. She is not a licensed real estate agent and does not receive remuneration for her “agent” services. Mrs. Dunn and her husband are paid $50 each time they clean one of the units, but receive no other compensation related to the units. In August 2015, Ms. Aysheh approached Mrs. Dunn about the possibility of leasing a unit at the Resort. Mrs. Dunn checked with the Owners, who said they would rent Unit 323 for $1000 a month, with a term of August 15 through November 15 (or, possibly, December 15), 2015. No security deposit or other security was requested by the Owners. Ms. Aysheh, who had just lost her previous living arrangements, was excited to find the unit and was ready to move in immediately. Neither party prepared or offered a written contract or lease to express the agreed terms for rental of the unit. Ms. Aysheh testified that after negotiating this arrangement with Mrs. Dunn, Mrs. Dunn inquired about Ms. Aysheh’s nationality. (Ms. Aysheh has dark hair, olive skin, and Middle Eastern features.) When she replied that she was Middle Eastern, Mrs. Dunn allegedly responded, “Well, you’re not going to start blowing shit up are you?” Ms. Aysheh said she was so shocked by the comment that she did not immediately respond, but then just said, “No.” Mrs. Dunn laughed and left, presumably with an agreed oral rental agreement in place. About 20 minutes later, Ms. Aysheh says that Mrs. Dunn sent her a text message saying that the Owners now wanted $2000 per month for the unit and required a $500 deposit before she could move in. Mrs. Dunn denies ever saying such a thing and the evidence does not support the accusation; after all, Ms. Aysheh moved into the apartment as planned, with a rental amount of $1000 per month. Mrs. Dunn and/or the Owners allowed Ms. Aysheh to move in on the thirteenth of August rather than the fifteenth, the first two days free of charge. When Ms. Aysheh came to move in on the thirteenth, she told Mrs. Dunn she only had $500 and so she could pay for only half of the month. Mrs. Dunn contacted the Owners to report this fact. There is some, but not sufficient, evidence that the Owners at that point said the lease price would be raised to $2000 per month. Even if so, Ms. Aysheh was ultimately allowed to move in and pay $500 for the remainder of August, with $1000 due on September 1 for the next month’s rent. Ms. Aysheh moved into the unit under those conditions. When she moved in, Ms. Aysheh was given one or two “long term” parking permits, issued to persons who rented units at the Hawaiian Inn from private owners. Mrs. Dunn remembered Ms. Aysheh asking for several more parking permits, but no competent evidence was presented to prove how many permits Ms. Aysheh was given (and it is totally irrelevant to the issues herein anyway). As the rent for September was coming due, Mrs. Dunn contacted Ms. Aysheh via text on August 28, 2015, to remind her. Mrs. Dunn suggested Ms. Aysheh make the rent payment on August 31, 2015, but Ms. Aysheh replied that she would be out of town that day. Mrs. Dunn said that it would be okay to deliver payment on September 1, but Ms. Aysheh remembered telling Mrs. Dunn that September 1, 2015, was a holiday (although the Labor Day holiday in 2015 was actually celebrated on September 7, the first Monday of the month that year). Ultimately, Mrs. Dunn’s husband, Mr. Dunn, told Ms. Aysheh he would come by the unit to pick up the check on the fourth, a Thursday. Mr. Dunn also agreed to bring a receipt of some kind to acknowledge the payment. Ms. Aysheh maintains that the rent check was always due on the fourth anyway because her Social Security disability check arrived in her checking account on the third day of each month. She remembered clearing that date (the fourth) with Mrs. Dunn and/or the Owners during the initial conversation regarding the unit. Mrs. Dunn does not remember that being discussed; the Owners did not testify at final hearing. Prior to September 4, 2015, Mr. Dunn advised the Owners that a plumber was coming to do work on the unit. Because the plumbing work was a cost to the Owners, they instructed Mr. Dunn to use the proceeds from Ms. Aysheh’s payment to cover the plumbing cost. Mr. Dunn told the Owners that Ms. Aysheh was planning to make her payment on September fourth, so the money might not be available when the plumber arrived. The Owners told Mr. Dunn that Ms. Aysheh needed to pay her rent immediately so the money would be available to pay the plumber. On September 3, Mr. Dunn contacted Ms. Aysheh to tell her she must pay her rent immediately after all. Ms. Aysheh said Mr. Dunn refused her offer of payment that same day at 6:30 p.m. Mr. Dunn said that Ms. Aysheh told him at that time that she had put the rent money into an escrow account. But inasmuch as Ms. Aysheh said that her money was not deposited into her account until midnight on the third day of each month, it is unlikely she was able to offer payment to Mr. Dunn or that she placed the money in an escrow account on that day. In fact, Ms. Aysheh’s own exhibit shows that $1000 was placed in a Wells Fargo Bank account on September 4, 2015. The assertion by Ms. Aysheh concerning escrow of the rent payment led Mr. Dunn to believe she was trying to avoid paying the rent. When Mr. Dunn advised the Owners of this fact, they directed him to tell Ms. Aysheh to vacate the premises immediately. So Mr. Dunn planned to show up on September 4, 2015, as planned, but for the purpose of telling Ms. Aysheh to leave the unit rather than to pick up her rent check. Mr. Dunn asked Ms. Sheriffe, a contracted on-site security guard, to accompany him to the unit and “observe” while he talked to Ms. Aysheh. Ms. Sheriffe did not know what Mr. Dunn was going to tell Ms. Aysheh, only that he wanted a witness to the conversation because Ms. Aysheh was a single woman and he did not want anything misconstrued. Ms. Sheriffe went with Mr. Dunn but did not get involved in the discussion; she simply heard Mr. Dunn tell Ms. Aysheh she had to move out of the unit. Ms. Aysheh did not object nor did she ask to pay the rent at that time so that she could stay in the unit. She did not mention the escrowed funds at that time. Ms. Aysheh did ask if she could have until 3:00, about four hours, to remove her belongings and Mr. Dunn agreed. Ms. Aysheh then began moving her property out of the unit. Ms. Sheriffe went about her duties, but came back later to see that Ms. Aysheh was indeed moving out of the unit. The process took almost the entire four hours. Later, Ms. Sheriffe spoke with the building manager, Mr. Witherow, about what had happened at Unit 323. She had no previous discussions with Mr. Witherow about the situation. Ms. Aysheh vacated Unit 323 and had no further direct contact with the Owners, the Resort, or the Dunns. There was no competent evidence presented that the Resort was in any fashion aware of the arrangement between Ms. Aysheh and the Owners nor that the Resort was involved in the process at all. The only contact by Ms. Aysheh with the Resort was a short telephone conversation with Mr. Witherow after she had been told to vacate the unit. Mr. Witherow told Ms. Aysheh there was nothing the Resort could do; the dispute was between her and the Owners. Upon hearing that, Ms. Aysheh became upset and terminated the phone call. Ms. Aysheh’s exhibits must be addressed: Exhibit 1 purports to be screen shots of alleged texts between Ms. Aysheh and Caroline and/or Richard Dunn. The alleged dates and times of the texts are handwritten on the copied screen shots, but there is no persuasive evidence that the dates and times are correct. The individual texts are disjointed and there is no way to verify whether they were modified or are complete. Nor do the texts support either party’s position in this matter in any substantive way. Exhibit 2, the banking account summary, shows only that Ms. Aysheh put $1000 into a Wells Fargo Bank checking account on September 4, 2015, and removed the funds on September 9, 2015. While that fact may somewhat support Ms. Aysheh’s contention that she put her rent payment into escrow, it does not explain why that money was not offered to pay rent on September 4 as she had agreed to do. The exhibit does not indicate the time of day the money was deposited. Exhibit 3 is a hearsay document, i.e., the Commission’s No Cause Determination, which supports the Resort’s position more than it supports Ms. Aysheh. The short-term lease between Ms. Aysheh and the Owners was an oral agreement. The Resort was not a party to the agreement and had no prior knowledge of its terms and conditions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Hanan Aysheh in its entirety. DONE AND ENTERED this 22nd day of December, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2016. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Hanan Aysheh Unit 1411 2800 North Atlantic Avenue Daytona Beach, Florida 32118 D. Michael Clower, Esquire Suite 204 224 South Beach Street Daytona Beach, Florida 32114 (eServed) David B. Russell, Esquire Law Offices of Pappas, Russell and Rawnsley 213 Silver Beach Boulevard Daytona Beach, Florida 32118 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact On or about December 4, 1981, Respondent executed an Agreement with Daytona Sands Beach Club, Inc. (Beach Club), the developer of the project, which was back-dated to August 14, 1981. By the terms of this Agreement, Beach Club sold its interest in thirty-four units of a forty unit condominium time share development having a retail value of $150,000, to Respondent for fifteen percent of the retail value. Respondent testified that the Agreement was simply a financing arrangement whereby Beach Club assigned time-share periods in thirty- four units as collateral for a loan made by Respondent. He stated he received none of the indicia of ownership. However, this is not confirmed by the terms of the Agreement which specifically refer to a sale of Beach Club's interest to Respondent, and an arrangement by which Beach Club would then market and sell the units which Respondent had purchased from them. The Agreement also expressly provides that it "constitutes the entire agreement between the parties and there are no other terms, conditions, or agreements which are not set forth herein or referred to herein." Additionally, it was Respondent who had used this form Agreement previously in other projects and who provided this Agreement for execution by Beach Club. Of the thirty-four units involved in Respondent's Agreement with Beach Club time-share purchasers had acquired time-share periods in twenty-eight units prior to the execution of this Agreement. An Addendum to the Agreement expresses the intention of Beach Club and Respondent that "the present structure of the Sands Beach Club, Inc., contemplates right to use only and not fee simple title." This was a "right to use project" whereby time-share purchasers acquired no interest in the underlying real property and were simply leasing the right to use particular units for a specified number of weeks each year. Thus, Beach Club had an ownership interest in the project at the time the Agreement was executed with Respondent despite the fact that time-share purchasers had already acquired a right to use twenty eight of the thirty-four units referenced in the Agreement. Respondent knew this was a "right to use" project at the time the Agreement was executed. Several months after the execution of this Agreement and Addendum, Respondent had an Assignment prepared which he executed with Beach Club. Although this later executed Assignment specifically acknowledges the prior executed Agreement and Addendum, Respondent contends that this Assignment was prepared and executed for the sole purpose of providing him with additional security for his purported financing arrangement with Beach Club. However, by acknowledging the prior executed Agreement and Addendum which, by their terms refer to a sale of Beach Club's interest to Respondent, the Assignment confirms that Respondent was not simply providing financing in this transaction. Respondent did not execute any additional agreement in association with the transaction other than as set forth above. Specifically, there is no evidence that Respondent agreed in writing to honor fully the rights of time- share purchasers to occupy and use the facilities and to cancel their contracts and receive appropriate refunds, nor did Respondent agree in writing to comply with Chapter 721 or to assume all obligations of the seller to these purchasers. There is no evidence that notice of Respondent's Agreement with Beach Club was mailed to each purchaser.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a $5,000 civil penalty against Respondent. DONE and ENTERED this 10th day of September, 1985, at Tallahassee Florida. DONALD D. CONN, 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 10th day of September, 1985. COPIES FURNISHED: Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Robert E. Austin, Jr., Esquire Post Office Drawer 1930 Leesburg, Florida 32748 Richard B. Burroughs, Jr. Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Director Division of Florida Land Sales Condominiums & Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301 =================================================================
The Issue Whether Respondent committed the offenses set forth in the Notice to Show Cause and, if so, what action should be taken.
Findings Of Fact Petitioner is the state agency charged with regulating yacht and ship brokers and salespersons pursuant to Chapter 326, Florida Statutes. At all times material hereto, Respondent was a licensed yacht broker.1 She is the yacht broker for Yachting Consultants, Inc. in Fort Lauderdale, Florida. In April 1999, Respondent was the listing broker of record regarding the sale of a 43-foot Pilgrim yacht. The selling broker was Mark Lipkus, a licensed yacht broker. John Pribik, a licensed salesperson, was Respondent's representative in the sale of the Pilgrim yacht. Mr. Pribik was under the supervision and control of Respondent and Respondent was responsible for his actions. Respondent had a buyer for the Pilgrim yacht, and the closing for the sale of the yacht was scheduled for April 13, 1999. The buyer was financing the purchase of the yacht. In a sale situation, a buyer and a seller have different responsibilities. The seller is responsible for providing all of the documents needed for a sale. The buyer is responsible for providing the funds for a sale. In the sale of the Pilgrim yacht, the responsibilities of the Seller and the Buyer did not change. There is a commission from the sale of a yacht, which is paid by the seller and, in accordance with standard industry practice, paid at closing. By standard industry practice, the commission split is 70/30, but can differ upon agreement. Mr. Lipkus received a down payment of $15,000.00 from the Buyer and placed the down payment in his escrow account. Mr. Lipkus was of the mistaken belief that the commission was payable by the Buyer, not the Seller. No co-broker agreement was entered into between Respondent or Mr. Pribik and Mr. Lipkus regarding commission. There was no discussion regarding the split of the commission between them. On a prior sale involving Mr. Pribik and Mr. Lipkus, the commission split was 60/40. Mr. Pribik and Respondent assumed the commission split of the sale of the Pilgrim yacht would again be 60/40. Considering the prior sale, it was not unreasonable for Respondent and Mr. Pribik to assume a 60/40 split of the commission. Mr. Lipkus assumed the commission split would be 70/30. A power of attorney had been prepared by the Seller who was unavailable for closing due to being in a remote area in the Philippine Islands. Mr. Pribik provided the power of attorney to the documenting agent who reviewed the power of attorney and found it to be satisfactory. The mortgage broker received a copy of the power of attorney prior to closing and forward a copy to the lending institution. The lending institution notified the mortgage broker at some point before closing that the power of attorney was unacceptable. In turn, the mortgage broker contacted the documenting agent regarding the unacceptability of the power of attorney and informed the documenting agent that a new power of attorney was required before closing could take place. Mr. Pribik was notified by the mortgage broker that a new power of attorney was required. The responsibility to obtain the new power of attorney was the responsibility of the listing broker, who was Respondent via Mr. Pribik. As far as Mr. Pribik was concerned, with the time remaining before closing2 and with the Seller being in the Philippine Islands, he believed that it was virtually impossible to obtain a new power of attorney by the time of closing. The mortgage broker, taking the position that he should do whatever he could to effectuate a closing, encouraged Mr. Pribik to attempt to contact the Seller. Complying, Mr. Pribik was able to make telephonic contact with the Seller and Mr. Pribik and the mortgage broker spoke with the Seller, who agreed to provide a new power of attorney. Based on the verbal assurance by the Seller to provide the new power of attorney, the lending institution agreed to proceed with the closing, which was re- scheduled for April 14, 1999. A new power of attorney was faxed to the Seller, and the Seller executed it and faxed it back. According to industry standard, all commissions are paid at closing when a seller receives the funds. Also, according to industry standard, closing is not delayed until a commission is paid. Mr. Lipkus mistakenly believed that the commission was paid by a buyer, coming out of a buyer's deposit. As a result, he expected to take the commission out of the Buyer's down payment, which was held in Mr. Lipkus' escrow account. After obtaining his commission, Mr. Lipkus was going to forward the remaining monies. On April 13, 1999, the original date for the closing, the closing could not take place because the financing from the lending institution was not available, based upon the absence of a new power of attorney. Also, Mr. Lipkus had not made arrangements for the deposit monies to be at closing or forwarded a settlement statement to closing, which were both needed for the closing. Respondent contacted Mr. Lipkus by fax regarding the commission monies and the settlement statement, demanding both items in order for closing to take place. The evidence is not clear and convincing as to whether Respondent demanded the monies held by Mr. Lipkus prior to closing or whether Respondent was threatening to delay the closing unless she had the monies prior to closing. The evidence suggests that Respondent was demanding the monies to be in place at closing. Additionally, on the original closing date, closing was to take place at the office of the mortgage broker. Mr. Pribik, the Buyer, and the mortgage broker were present for the closing. Mr. Lipkus did not intend to attend, and did not attend, the closing. Since the commission monies were not available at closing, Mr. Pribik telephoned Mr. Lipkus and demanded that the commission monies be available and, told him that if not made available, the closing could not take place. In Mr. Pribik's opinion, the monies were needed for closing. The evidence is not clear and convincing as to whether Mr. Pribik demanded the monies held by Mr. Lipkus prior to closing or whether Mr. Pribik was threatening to delay the closing if he did not have the monies prior to closing. The evidence suggests that Mr. Pribik was demanding the monies to be in place at closing. Furthermore, for the first time, Mr. Pribik and Mr. Lipkus, during the telephone conversation, became aware of their disagreement as to the proper commission split, whether 60/40 or 70/30. Believing that Mr. Pribik would prevent a timely closing, Mr. Lipkus agreed to Mr. Pribik's split of 60/40. Closing occurred on April 14, 1999. The necessary documents and finances were present. At the final hearing, Respondent expressed with sincerity that, if she did anything wrong, she wanted to know exactly what it was, so that she would not engage in the same conduct again. Furthermore, Respondent expressed the frustration that, prior to hearing, no one had explicitly told her what she had done wrong and that, at hearing, she continued to be unsure what she had done wrong because she had not been explicitly told what she had done wrong. Respondent has no prior disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, enter a final order: Finding that Giovanna Gallottini did not violate Rule 61B-60.008(3)(a), Florida Administrative Code. Not sustaining the Notice to Show Cause. DONE AND ENTERED this 6th day of February, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 6th day of February, 2001.
The Issue Whether Respondent, James Michael Rossi, violated section 468.436(2)(b)2., Florida Statutes (2015),1/ as alleged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with licensing and regulating Community Association Managers (CAMs), pursuant to sections 468.433 and 486.436, Florida Statutes, respectively. At all times material hereto, Respondent was a licensed Florida CAM, having been issued CAM license number 35631. At all times relevant hereto, Respondent was the CAM for Ocean Villa Condominium Association, Inc. (Ocean Villa). At times during Respondent’s tenure as Ocean Villa’s CAM, Respondent provided CAM services to other associations. During the relevant time period, Ocean Villa did not establish a credit card in its name. Respondent’s practice was to purchase goods for Ocean Villa using his personal credit card, and reimburse himself via check from the Ocean Villa checking account. Respondent submitted his credit card statements and some receipts as backup for the reimbursement checks. In December 2016, Ocean Villa obtained a debit card in its name and Respondent ceased the practice of making purchases on behalf of Ocean Villa using his personal credit card. In the Amended Administrative Complaint, the Department alleges as follows: On or about the following dates: May 2014; June 2014; March 2015; May 2015; and September 2015, Respondent wrote checks to himself from the Association’s checking account, for which Respondent failed to maintain and/or provide the corresponding receipts or invoices substantiating the total amount for each of those checks. The parties stipulated to introduction of seven checks Respondent wrote to himself allegedly in reimbursement for expenditures made by him on behalf of Ocean Villa. Check No. 1989 was written on May 13, 2014, in the amount of $519.00. The check stub indicates the payment was made for a “paint striper roll master,” a piece of equipment used in striping parking lots. As backup for the reimbursement, Respondent submitted an email from sales@paintsprayersplus.com to Respondent confirming an order placed May 13, 2014, for “Newstripe Rollmaster 1000 Parking Lot/Warehouse Line Striper” for a charge of $519.00. Under “payment information,” the email reads, “CREDIT (Denied).” The email further reads, “Your Credit Card payment has been denied. If you do not have a customer account, please contact sales@paintsprayersplus.com for assistance.” Respondent also introduced his June 2014 U.S. Bank credit card statement, which includes a charge on May 15, 2014, to Paintsprayersplus in the amount of $519.00. Respondent wrote Check No. 2043 on June 23, 2014, in the amount of $362.98. The check stub describes the purpose as “Reimburse Expenses.” As backup for the reimbursement, Respondent produced his June 2014 U.S. Bank credit card statement. The statement is redacted to exclude personal charges. The statement includes five separate charges at Office Depot, for a total amount of $147.64; a charge of $9.00 for conference call services; the charge of $519.00 from Paintsprayersplus; and a charge of $207.00 from Newstripe, Inc. Respondent testified the Newstripe, Inc. charge was for the paint used to restripe the parking lot at Ocean Villa. The redacted credit card statement contains Respondent’s handwritten note next to the Paintsprayersplus charge of $519.00 “PO 5-13-14 Ck# 1989,” indicating he previously reimbursed himself for that charge via Check No. 1989. The redacted credit card statement also contains Respondent’s handwritten note totaling the unredacted charges to $881.98, subtracting the $519.00 previously reimbursed for the restriper, leaving a remainder of $362.98 to be reimbursed. That amount matches the amount Respondent reimbursed himself via Check No. 2043. Respondent wrote Check No. 2361 on March 6, 2015, in the amount of $108.70. The check stub lists two invoices both dated March 6, 2015: $10.72 for “Phone cord for conference calls,” and $97.98 for “Copy paper and stamps.” As backup for the reimbursement, Respondent produced a receipt from Office Depot dated March 3, 2015, and a receipt from Home Depot dated February 26, 2015. The Home Depot receipt is for a “50’ white phone line cord” at $9.97, for a total of $10.72, after tax. The Office Depot receipt lists three separate charges: one for two boxes of 9 x 11 inch paper at $53.99 each; two quantities of U.S. postage stamps at $49.00 each; and another box of 9 x 11 inch paper at $53.99. All three boxes of paper were discounted $8.00 each, and the total, after tax, for the purchased items was $195.96. Respondent handwrote on the receipt after the total, “/2 97.98 Half to OV & Half to TP.” Respondent testified, credibly, that the supplies were purchased for both Ocean Villa and a second association for which he served as CAM. Respondent wrote Check No. 2371 on March 19, 2015, in the amount of $554.51. The check stub notes the purpose was reimbursement for three separate invoices dated March 19, 2015, for “office supplies.” The amounts corresponding with each invoice are $120.34, $386.28, and $47.89, respectively. As backup for the reimbursement, Respondent introduced his redacted U.S. Bank credit card statements for January and February 2015, as well as an Office Depot receipt dated March 7, 2015. The February 2015 bank statement contains the following unredacted charges: 01/16 Office Depot #2821 $24.48 01/18 Conf. Call Services $9.00 02/03 Office Depot #2821 $83.07 02/09 USPS $3.79 The total of the unredacted charges is $120.34, the same amount as the first invoice for office supplies noted on the check stub for February 10, 2015. The January 2015 bank statement contains the following unredacted charges: 12/10 Office Depot #2821 $28.20 12/11 USPS $134.33 12/15 Office Depot #2821 $49.00 12/24 Conf. Call Services $9.00 01/02 Lowes #02367 $22.00 01/06 Office Depot #2821 $143.75 The charges total $386.28, the same amount as the second invoice for office supplies noted on the check stub for January 12, 2015. The March 7, 2015 receipt from Office Depot lists two charges: No. 8 Envelopes at $36.99, and two of another item (unidentifiable based on the receipt) at $3.99 each for a total of $7.98. The total purchase, after tax, was $47.89, the same amount as the third invoice for office supplies noted on the check stub. Respondent wrote Check No. 2378 on March 20, 2015, in the amount $359.40. The check stub describes the purpose as “Miscellaneous.” As backup documentation for the reimbursement, Respondent introduced his March 2015 U.S. Bank credit card statement, which lists the following unredacted charges: 02/19 Conf. Call Services $9.00 02/24 USPS $12.35 02/25 Amazon Marketplace $113.56 02/27 Amazon Marketplace $176.60 03/07 Office Depot $47.89 Respondent testified, credibly, that the Amazon Marketplace charges were for personalized uniform jackets for Ocean Villa maintenance and security personnel, purchased at the direction of the Board. The unredacted charges total $359.40, the same amount as reimbursement Check No. 2378. Respondent wrote Check No. 2459 in the amount of $2,364.74 on May 22, 2015. The check stub lists nine separate purchases in April and May of 2015, including binders for Ocean Villa’s financial statements, an external hard drive, file folders, sun umbrellas and bases, and postage for certified mail. As backup in support of the reimbursements, Respondent introduced nine receipts from a variety of vendors, including Office Depot, Home Depot, WalMart, Sam’s Club, and USPS. The last check at issue is Check No. 2593 which Respondent wrote on September 24, 2015, in the amount of $471.50. The check stub lists four separate invoices for postage. As backup documentation for the reimbursement, Respondent introduced four separate USPS receipts which match the amount listed on the check stub for each invoice, and which total $471.50. In this case, the Department charges Respondent with two counts pursuant to section 468.436(2)(b)2., which subjects a licensee to discipline for violating any rule adopted by the Department. Count I In Count I of the Amended Administrative Complaint, the Department alleges Respondent violated Florida Administrative Code Rule 61E14-2.001(3)(d), which requires maintenance of the “official records” of an association as required by section 718.111(12), Florida Statutes. Specifically, the Department charges Respondent with failure to maintain “[a]ccurate, itemized, and detailed records of all receipts and expenditures,” as required by section 718.111(12). The Department introduced the testimony of Dawn Warren, a 16-year licensed CAM, who has been employed as CAM for two separate condominium associations, served as president of a condominium association complex for 15 years, and previously served on the Regulatory Council of Community Association Managers for eight years (three years as Chair). Through Ms. Warren’s testimony, the Department attempted to establish that a CAM must keep vendor receipts of each purchase in order to comply with the statutory requirement to maintain “[a]ccurate, itemized, and detailed records of all receipts and expenditures.” Ms. Warren testified consistently that the vendor receipt was the only appropriate record of what was purchased by, or on behalf of, the association. The Department admitted, through Ms. Warren’s testimony, that the backup documentation for Check Nos. 2361, 2459,3/ and 2593 were appropriate itemized records of what was purchased on behalf of the association. The Department’s allegations on Count I can be narrowed to whether Respondent failed to maintain “[a]ccurate, itemized, and detailed records of all receipts and expenditures,” based on the records associated with four checks: 1989, 2043, 2371, and 2378. Ms. Warren’s opinion that itemized receipts for each purchase are required hinges on her interpretation of the statute, summarized as follows: Well, right in 718, it does say itemized receipts and expenditures. So an itemized receipt would be something that’s itemized, which you – which I and anyone that I know that’s a CAM turns in a receipt, and it itemizes what they bought.[4/] Despite Ms. Warren’s depth of experience as a CAM, her testimony was not persuasive. Ms. Warren’s read of the statute is incorrect. It does not read, “itemized receipts,” it reads, “itemized and detailed records of all receipts and expenditures.” Further, Ms. Warren’s opinion that the vendor receipt is required because it is the only record of what was actually purchased, is not credible. With regard to Check No. 2361, Ms. Warren testified that, based on the receipt, she could identify that the three purchases were, in order, envelopes, postage, and paper. The first and third items on the receipt have the exact same product ID and description--196517 PPR,X- 9.11” .10. Yet, Ms. Warren testified that the first charge on the receipt was for No. 10 envelopes, while the last item on the receipt was for paper. She subsequently testified as to the first charge, “I don’t know what it is exactly.” Ms. Warren’s opinion that the vendor’s itemized receipt is the only allowable record of expenditures, because it is “the record of what was purchased,” was undercut by her own inability to identify from the vendor itemized receipt specifically what was purchased on behalf of the association. The Department’s focus on receipts is misplaced. As correctly identified by Respondent, the items purchased by him on behalf of Ocean Villa are expenditures, not receipts. The statute requires Ocean Villa, through its CAM, to maintain “itemized and detailed records of all . . . expenditures.” Respondent testified, credibly, that he maintains copies of all Ocean Villa expenditures organized by both date (month, day, and year) and by vendor, as well as QuickBooks records of all Ocean Villa documents. Further, with the exception of Check Nos. 2043 and 2378, the checkstubs entered into evidence are itemized as to the date of purchase, the amount paid, and a description of the item purchased. These are detailed, itemized records of the expenditures made. The check stub for Check No. 2043 lists an invoice dated June 23, 2014, in the amount of $362.98 to “Reimburse Expenses,” followed up with a redacted credit card statement listing five separate Office Depot charges, a charge from Newstripe, Inc., and a $9.00 charge for conference call services. At hearing, it was established that the $9.00 charge for conference call services was a recurring monthly charge to the association. It was also established that the $200.00 charge to Newstripe, Inc., was for the paint used to restripe the Ocean Villa parking lot. The record does not support a finding of what specifically was purchased at Office Depot for a total of $146.74. The check stub for Check No. 2378 lists one invoice in the amount of $359.40 for “Miscellaneous” expenses, to which Respondent attached his unredacted March 2015 credit card statement. The statement lists unredacted charges of $9.00 for conference call services, $12.35 for postage, $47.89 for purchases at Office Depot, and the Amazon Marketplace charges for uniform jackets totaling $290.16. Respondent introduced the March 7, 2015 Office Depot itemized receipt showing two purchases: one for envelopes at $36.99, and one for an unidentified product5/ at $3.99 each, for a total of $47.89. The record does not support a finding of what specifically was charged at Office Depot for $3.99 x 2. The Department did not prove Respondent failed to maintain “[a]ccurate, itemized, and detailed records of receipts and expenditures.” At most, the Department proved that Respondent reimbursed himself, through Check Nos. 2043 and 2378, for expenditures totaling $154.72 without a written itemized account of what was purchased. Count II In Count II of the Amended Administrative Complaint, the Department alleges Respondent violated rule 61E14- 2.001(2)(c), which requires a CAM to “perform all community association management services . . . to professional standards and to the standards established by Section 468.4334(1), F.S.” The Department argues Respondent failed to meet undefined “professional standards” by reimbursing himself for expenses incurred on behalf of the association without itemized vendor receipts for each expense. Ms. Warren testified repeatedly that Respondent did not submit itemized receipts to support reimbursement checks to himself for purchases made on behalf of Ocean Villa. She expressed her opinion that a CAM’s reimbursement records should include the itemized receipts for purchases for which reimbursement is sought, and that, in her 15 years as an association president, she would never sign a check to reimburse a CAM without the itemized receipt for the purchases made. Ms. Warren’s opinion was based solely on her practice and not on any standards or guidelines established by a professional organization. Ms. Warren’s testimony did not establish that her practice constituted recognized “professional standards,” because she was not able to identify at hearing the specific items purchased based on the Office Depot itemized receipt. Section 468.4334(1) requires, in pertinent part, as follows: A [CAM] and a [CAM] firm shall discharge duties performed on behalf of the association as authorized by this chapter loyally, skillfully, and diligently; dealing honestly and fairly; in good faith; with care and full disclosure to the community association; accounting for all funds; and not charging unreasonable or excessive fees. In an apparent effort to prove Respondent violated the specific professional standards captured in section 468.4334(1), the Department introduced Respondent’s management services contracts with Ocean Villa, and testimony regarding his performance of his duties pursuant to the contracts. The testimony suggested that the checks at issue were reimbursement for expenses Respondent did not have Board approval to incur. For example, Christopher Arnold, who became Ocean Villa President in October 2017, testified that Respondent was limited by the contract to incur expenses for repairs up to $500.00 without Board approval. Mr. Arnold argued that, as none of the expenditures for which Respondent reimbursed himself were for repairs, Respondent did not deal honestly and fairly, or with good faith, in reimbursing himself for the expenses because he did not have Board approval to incur them. Mr. Arnold’s testimony was neither credible nor persuasive. Paragraph 4 of Respondent’s contract in effect beginning in June 2015, titled “Reimbursement of Expenses,” requires the association to reimburse the CAM for costs incurred “in providing services, material, and supplies to, or for the direct benefit of,” the association. Paragraph 4 contains no monetary limit on the amount of costs to be reimbursed. In contrast, paragraph 5.H. of the contract, upon which Mr. Arnold relied, requires the CAM to make repairs and perform other functions in order to “maintain and operate the Association,” and limits expenditures for repairs to $500 without “prior consent from the Board’s representative unless it is a budgeted item.” The Department did not introduce any credible evidence that Respondent’s reimbursements at issue in this case were contrary to any term of Respondent’s contract with Ocean Villa. Moreover, Respondent’s prior contract with Ocean Villa--which preceded the June 2015 contract--required the association to reimburse the CAM “for all reasonable expenses incurred by the [CAM] in the course of its engagement.” The Department did not introduce any evidence that Respondent’s reimbursements were not for “reasonable expenses incurred.” The record established that neither the Ocean Villa Board nor its President in office during 2014 and 2015 ever questioned Respondent’s reimbursements. The Department did not prove Respondent’s reimbursement of expenses by Check Nos. 2361, 2371, 2378, 2459, and 2593,6/ violated any professional standard, including those set forth in section 468.4334(1).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation dismiss DBPR Case No. 2017-043696 against James Michael Rossi. DONE AND ENTERED this 27th day of September, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2018.
The Issue On February 28, 1996, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Petitioner) issued a Notice To Show Cause to Robert O'Brien (O'Brien) alleging that O'Brien violated Section 326.006(2)(e)7, Florida Statutes. Specifically, O'Brien was charged with allowing an unlicensed person to attempt to sell a 52' Hatteras known as "Watermellon" on behalf of O'Brien Yacht Sales. The issue is whether this violation occurred and, if so, what penalty is appropriate. On May 15, 1996, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Petitioner) issued an Amended Notice To Show Cause to David Sandmann (Sandmann) alleging that Sandmann violated Section 326.004(1), Florida Statutes. Specifically, Sandmann was charged with offering or negotiating to sell a 52' Hatteras, known as "Watermellon". The issue is whether this violation occurred and, if so, what penalty is appropriate. RULINGS ON PETITIONER'S EXCEPTIONS TO ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT Petitioner filed an exception to the Administrative Law Judge's Finding of Fact number 15. Section 120.57(1)(j), Florida Statutes, states that: The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence. A thorough review of the record has been made. The Division adopts and incorporates by reference the first sentence of the Administrative Law Judge's Finding of Fact number 15. Petitioner's exceptions to the remainder of Finding of Fact number 15 are accepted because the remainder of the Administrative Law Judge's Finding of Fact number 15 is not supported by competent substantial evidence. The second sentence, "The conflict as to whether Respondent Sandmann's acts, considered collectively, establish that he was attempting to sell the boat is resolved by finding that he was not attempting to sell the boat." is rejected because, the Petitioner presented testimony which proved that Sandmann: offered "to help" the Division investigators when they approached the boat. (T. 20, 38-39). gave the Division investigators a business card with his name and O'Brien Yacht Sales, Inc. written on it. (T. 19, 38-19, 52)( P's Exh. 2) gave the Division investigators a spec sheet containing information about the boat. (T. 21, 32, 39, 52). (P's Exh. 3). told the Division investigators that the price of the boat was negotiable. (T 22, 29-30, 39-40, 52). told the Division investigators that the commission would be paid by the seller. (T 21, 22, 29-30, 32, 34, 40, 43) had a copy of a blank sales contract faxed to him (from O'Brien Yacht Sales, Inc.) at the boat show. (T. 22- 23, 41, 52) Also at Recommended Order, page 5, paragraphs 9, 10, 11 and 12. Additionally, there was no competent substantial evidence to support the Hearing Officer's Finding of Fact that Respondent Sandmann was not offering or negotiating to sell the boat, because these actions were uncontroverted. Respondent Sandmann never denied that he was offering or negotiating to sell the boat. Furthermore, the sentence in question is not a Finding of Fact, but rather a Conclusion of Law. The Administrative Law Judge's characterization of this as a Finding of Fact, does not make it so. In Hernicz v. State Dept. of Professional Reg., 390 So.2d 194 (Fla. 1st DCA 1980), facts were undisputed that a nurse practitioner had done certain acts, and when the Board concluded that the actions were a violation of the statute, the court held that that amounted to a Conclusion of Law and not a Finding of Fact. The "facts" were the individual actions that were taken by the Respondent, whether these acts violated the statute was a Conclusion of Law. As stated above, the acts, themselves, in this case were neither denied nor disputed. The second sentence in Finding of Fact number 15 is stricken in its entirety. The third sentence in Finding of Fact number 15 states that "[I]t is clear that Respondent Sandmann was at no time acting as an employee of Mr. Mellon or Respondent O'Brien or with the expectation of receiving compensation for his acts". The "expectation of receiving compensation" was the argument relied on by the Respondents at hearing as their defense to participating in the boat show. Because "compensation" is an integral part of Chapter 326, Florida Statutes, its interpretation should be left to the expertise of the agency. It is a well settled principle that the interpretation of a statute by the agency responsible for its enforcement is entitled to great weight, and will not be overturned unless clearly erroneous. Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); Shell Harbor Grou, Inc. v. Department of Business Regulation, 487 So.2d 1141 (Fla. 1st DCA 1986). The Division believes that "compensation" can be other than a monetary commission, as claimed by Respondents. "Compensation" can be "perks" such as transportation or use of a house or yacht, or something intangible, such as friendship and affection. The existence of a quid pro quo is what is looked for. Furthermore, from a thorough reading of the record, it was proven by substantial competent evidence that a commission was anticipated being paid, because Petitioner's investigators were told that "the commission would be paid by the seller". (T 21, 22, 29-30, 32, 34, 40, 43). Possibly, no monetary commission was paid to Sandmann, because the yacht did not sell. Regardless, the Division finds that the friendship between Mr. Mellon and Sandmann was adequate compensation under Chapter 326, Florida Statutes. The third sentence of Finding of Fact number 15 is stricken in its entirety. The fourth sentence, "Respondent Sandmann was at the Boat Show and on the `Watermellon' solely as a friend of Mr. Mellon, the owner", is also rejected. The Division does not dispute the long standing friendship of Respondent Sandmann and Mr. Mellon, however being someone's "friend", does not exempt them from Chapter 326, Florida Statutes. There was uncontroverted testimony that Respondent Sandmann was offering or negotiating to sell the boat. That is all that is necessary for him to be within the jurisdiction of the Division, and require him to have a license. Although his friendship could be his motivation or compensation for being on the yacht, his actions, while there, show that he was offering or negotiating to sell the "Watermellon". The fourth sentence of Finding of Fact Number 15 is stricken in its entirety. RULINGS ON PETITIONER'S EXCEPTION TO ADMINISTRATIVE LAW JUDGE'S CONCLUSIONS OF LAW Petitioner filed an Exception to Conclusion of Law number 23 contained in the Recommended Order. This conclusion stated that the Petitioner had failed to meet its burden as to Sandmann because it failed to establish that he was attempting to sell the yacht, and, if the case against Sandmann failed, then the case against O'Brien failed. The Division rejects this Conclusion of Law because it believes that Petitioner proved by substantial competent evidence that Sandmann was offering or negotiating to sell the "Watermellon", and that friendship is adequate compensation.
Findings Of Fact Petitioner is the agency of the State of Florida that administers and enforces the Florida Yacht and Ship Brokers' Act, Chapter 326, Florida Statutes. At all times pertinent to this proceeding, Respondent O'Brien has been licensed as a Yacht and Ship Broker pursuant to the provisions of Chapter 326, Florida Statutes. Respondent O'Brien owns and operates O'Brien Yacht Sales. Respondent O'Brien resides in and has his principal place of business in Palm Beach County, Florida. Mr. Sandmann is a resident of Essex, Connecticut. He has never been licensed as a yacht salesman or as a yacht broker. Mr. Sandmann makes his livelihood as the owner of a dog collar manufacturing business. Henry Mellon, the boat's owner, held a salesman's license issued by Petitioner that expired in August 1994. At the times pertinent to this proceeding, Mr. Mellon was not licensed by the Petitioner. Respondent Sandmann, Respondent O'Brien, and Mr. Mellon have been close friends for many years. Mr. Mellon formerly worked for O'Brien Yacht Sales. Mr. Mellon and Respondent Sandmann are old friends from college. The Fort Lauderdale International Boat Show permitted only new yachts or brokered yachts. Individuals were not supposed to sell boats in this show. Respondent O'Brien was aware of this restriction. In October 1995, Respondent O'Brien had the boat "Watermellon" displayed and listed for sale at the 36th Annual Fort Lauderdale International Boat Show. The asking price for the sale of the Watermellon was $425,000. Mr. Mellon is neither an officer or a director of O'Brien Yacht Sales. Mr. Mellon signed a form styled "Application and Contract for Exhibit Space" so that the Watermellon could be exhibited at the boat show and on this application represented that he was a vice president of O'Brien Yacht Sales. Neither Respondent O'Brien or his company paid to put the Watermellon in the Boat Show and neither expected to receive any commission from the sale of the Watermellon. Respondent O'Brien was acting out of friendship with Mr. Mellon. 1/ On October 27, 1995, Peter Butler and Robert Badger, in their official capacities as employees of the Petitioner, attended the Boat Show and went to the Watermellon. They observed a sign on the back of the boat that advised that the boat was being offered by O'Brien Yacht Sales and gave its telephone number. Mr. Butler and Mr. Badger approached the boat and asked a person, later identified as Respondent Sandmann, whether Respondent O'Brien was aboard. Respondent Sandmann told Mr. Butler and Mr. Badger that Respondent O'Brien was not aboard, asked if he could help them, and gave them a business card with his name and the name of O'Brien Yacht Sales on it. No licensed salesman was on board at this time, but Mr. Mellon, the owner of the boat, was aboard. 2/ Respondent Sandmann gave Mr. Butler and Mr. Badger a copy of a printed sheet containing basic information about the Watermellon. This sheet, referred to as a spec sheet, contained errors that Respondent Sandmann verbally corrected when he gave them the sheet. In response to questions, Respondent Sandmann told Mr. Butler and Mr. Badger that the price of the boat was negotiable and that the commission would be paid by the seller. Mr. Butler and Mr. Badger asked Respondent Sandmann if they could see a copy of the contract that a buyer would need to sign if he purchased the boat. In response, Respondent Sandmann contacted the O'Brien Yacht Sales office and had someone fax to him a copy of the contract used by O'Brien. Respondent Sandmann then gave the form contract to Mr. Butler and Mr. Badger. The business card given by Respondent Sandmann to Mr. Butler and Mr. Badger was printed in 1994 when Respondent Sandmann, who is fluent in French, Spanish, and Italian, accompanied Mr. Mellon to a boat show in Europe. Mr. Butler and Mr. Badger did not inquire as to the amount of the commission that would have been paid by the seller of the Watermellon because Petitioner does not regulate commissions. None of Respondent Sandmann's acts, when considered individually, required a license from the Petitioner. 3/ The conflict as to whether Respondent Sandmann's acts, considered collectively, establish that he was attempting to sell the boat is resolved by finding that he was not attempting to sell the boat. It is clear that Respondent Sandmann was at no time acting as an employee of Mr. Mellon or Respondent O'Brien or with the expectation of receiving compensation for his acts. Respondent Sandmann was at the Boat Show and on the Watermellon solely as a friend of Mr. Mellon, the owner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order as to these consolidated cases that dismisses the charges filed against these respondents. DONE AND ENTERED this 27th day of August, 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 27th day of August, 1996.
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
