Findings Of Fact On May 29, 1977, petitioner Artur Zoelfel entered into a written agreement to buy the yacht Superior Queen from H-E-R Leasing Corporation "for the total sum of $125,000.00 (one hundred, twenty-five thousand dollars)." Petitioners' exhibit No. 1. H-E-R Leasing Corporation is not a licensed or registered dealer in Florida. An addendum to the contract, dated May 30, 1977, was signed by Artur Zoelfel but was not signed by anybody on behalf of H-E-R Leasing Corporation. Petitioners' exhibit No. 2. On June 16, 1977, an assistant secretary for maritime affairs in the United States Department of Commerce entered an order, No. MA-15079, approving the sale of the Superior Queen to "Artur Zolfel, a West German citizen, and the transfer of said vessel to Federal Republic of Germany registry and flag . . . upon the condition that there shall be no liens or encumbrances recorded against such vessel . . . at the time of its transfer . . ." Petitioners' exhibit No. 2. On June 27, 1977, an anonymous telephone caller told Bernard Frank Fox, respondent DOR's area supervisor in Broward County, that petitioner had bought the Superior Queen. As the result of investigation by other employees of respondent DOR, Mr. Fox concluded that this information was correct and set in motion events that culminated, on June 30, 1977, in a levy on the Superior Queen by the Broward County sheriff's office. At that time, respondent DOR claimed that fifty-two hundred dollars ($5,200.00) in tax was owed, on the assumption that the Zoelfels had paid the asking price for the Superior Queen, which had purportedly been one hundred thirty thousand dollars ($130,000.00). After the levy, one Paul C. Mueller approached Mr. Fox on behalf of Mr. and Mrs. Zoelfel and represented to Mr. Fox that petitioners had purchased the Superior Queen for one hundred twelve thousand five hundred dollars ($112,500.00). On that basis respondent DOR accepted forty-five hundred dollars ($4,500.00) in satisfaction of its claim for tax, and the sheriff released the Superior Queen. As reflected by the bill of lading, petitioners exhibit No. 4, on August 2, 1977, petitioner Artur Zoelfel caused the Superior Queen to be loaded onto a freighter, M/S Finn Enso, in Tampa, Florida, bound for Hamburg, West Germany. Neither of the petitioners is a licensed exporter.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the notice of assessment be upheld. DONE and ENTERED this 17th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Thomas E. Hunt, Esquire Suite 302, Building 2 3020 North Federal Highway Fort Lauderdale, Florida 33306 Mr. Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32304
Findings Of Fact Respondent Heidt Neil "Cap" Fendig, Jr., and his corporate alter ego, Go Fish, Inc., do business under the name Golden Isles Charter Company. Aside from operating the marina he leases on St. Simons Island, Georgia, Mr. Fendig hires out as a captain (for $175 a day), arranges charters, and acts as a yacht broker in Georgia. When Kirby J. Bourgeois acquired the Westwind, a 55-foot "Ocean Super Sportfisherman," the man to whom the boat had previously belonged recommended respondent to Mr. Bourgeois, an Oklahoman who knew little about boats, as somebody who could assist him. When Messrs. Fendig and Bourgeois met on October 5 or 6, 1990, respondent agreed to register the Westwind in the name of a corporation (Mandela Corp.) Mr. Bourgeois specified, and to equip the boat in accordance with Coast Guard requirements. Later he took Mr. Bourgeois out on "training trips." For each of these services, respondent prepared invoices which Mr. Bourgeois paid in due course. Around Thanksgiving of 1990, Mr. Fendig acted as the Westwind's captain on a cruise Mr. Bourgeois took to the Bahamas. They left the boat docked in Marsh Harbor. In January of 1991, Mr. Bourgeois told Mr. Fendig on the telephone that he wanted to sell the Westwind. At that time, if not before, Mr. Fendig mailed Mr. Bourgeois a packet of information about selling boats, which included a form yacht brokerage agreement. Instead of signing the yacht brokerage agreement, Mr. Bourgeois decided to show the Westwind at the Third Annual Brokerage Yacht Show in Miami Beach, one of the alternatives Mr. Fendig had suggested. Mr. Fendig, who had once inquired of petitioner DBR about obtaining a Florida yacht broker's license, and been told he was ineligible because he lived and worked out of state, advised Mr. Bourgeois that he was not licensed in Florida and could not act as a yacht broker in Florida. From conversations he had with petitioner's employees at the time he discussed obtaining a Florida license, Mr. Fendig understood that Florida law permitted him to accompany and assist yacht owners in the sale or purchase of yachts in Florida so long as he did not buy or sell as an owner's agent. Mr. Fendig agreed to bring the Westwind over from Marsh Harbor for the show, which began on February 14, 1991, a Thursday. On January 23 or 24, 1991, respondent sent Mr. Bourgeois a facsimile transmission, described as confirmation of a telephone conversation, in which he wrote: "As per your instructions, I will transport the boat to the Miami show and look for your arrival in Miami at [sic] sometime during the show." Petitioner's Exhibit No. 4. Although Mr. Bourgeois had informed respondent "that he would not be able to be there the first day" (T.24), Mr. Fendig arrived before the show began. He also filled out a form application and a contract for exhibit space, Petitioner's Exhibit No. 3, which, together with the application fee, had reached Yachting Provisions, Inc. in Ft. Lauderdale, on February 1, 1991. Mr. Bourgeois, whose name did not appear on the application and contract, later reimbursed him the fee. Reportedly delayed by a snowstorm, Mr. Bourgeois did not reach Miami before Saturday evening. Until Mr. Bourgeois arrived, Mr. Fendig stayed with the boat, moored at slip 221 on Collins Avenue. Available to anybody who visited the Westwind while he was on board were copies of his business card, which included the words "YACHT SALES-YACHT MANAGEMENT." Petitioner's Exhibit No. 6. Also available to show goers (including those to whom respondent never spoke) were one page fliers describing the Westwind and concluding: "Asking $350,000 Looking for serious offers contact H. N. "Cap" Fendig, Golden Isles Yacht Sales & Charter Co. 912 638-7717 St. Simons Island, Ga." Petitioner's Exhibit No. 5. Respondent had asked his brother to make up this flier. Like other paid captains, respondent told anybody who inquired the owner's asking price. When, on the first day of the boat show, investigators in petitioner's employ posed as potential buyers, Mr. Fendig told them they would have to speak to the owner, who would be arriving later in the show. He told "everybody that, if they wanted to make an offer, the owner was coming and they could drop by later in the show and . . . talk to him." T. 36. While at the boat show, Mr. Fendig slept on the boat, which was an economic benefit for him, at the same time it afforded the vessel a measure of security, which was an economic benefit for the owner. Mr. Bourgeois paid him for bringing the boat to Miami Beach, but not for the time he spent there. He had wanted to go to the boat show for his own purposes, in any event. The yacht show closed on Monday without the Westwind's changing hands. Mr. Bourgeois still owned the Westwind on March 11, 1991, when he signed a yacht brokerage agreement with respondent Fendig. Petitioner's Exhibit No. 7. Before that time Mr. Fendig had no agreement for or expectation of any compensation on account either of the Westwind's sale or of his efforts to accomplish a sale (other than bringing the boat to Miami, for which he received a fixed amount.)
Recommendation It is, accordingly recommended that petitioner dismiss the notice to show cause. RECOMMENDED this 5th day of December, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 5th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3108 Petitioner's proposed findings of facts Nos. 1, 2, 3, 4, 5, 8, 9, 11, 12, 13, and 14 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, he was off and on the boat during the last two days. Before Mr. Bourgeois' arrival, it had been necessary to stay with the boat for security reasons. With respect to petitioner's proposed finding of fact No. 7, the proof did not show that anybody asked the owner's name, address or phone number. Respondent testified he did not distribute this information because it "wasn't necessary, because the owner was going to be there." T.36. With respect to petitioner's proposed finding of fact No. 10, the taking of evidence had closed and respondent was making legal argument. With respect to petitioner's proposed finding of fact No. 15, respondent (who appeared pro se) answered a speculative question about what "could" happen. COPIES FURNISHED: Thomas Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 H. N. "Cap" Fendig 205 Marina Drive St. Simons Island, GA 31522 Henry M. Solares, Director Florida Land Sales, Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact Thomas A. Baggett, Respondent, is a Tampa Bay Pilot licensed by the State of Florida and holds license number 000045. He was so licensed at all times relevant to the charges here involved. On December 13, 1985, the United States Coast Guard held a hearing concerning the Coast Guards charge of negligence against Baggett for his piloting of the T/B Bulkfleet Pennsylvania. At that hearing Baggett pleaded guilty to and was found guilty of the charge that he was negligent while piloting the T/B Bulkfleet Pennsylvania on November 19, 1985, which resulted in this vessel running aground in the vicinity of Cut "C" Channel, Hillsborough Bay, Florida. At the time of the grounding of the T/B Bulkfleet Pennsylvania, Baggett was acting under the authority of his Coast Guard license number 486856 and was subject to the jurisdiction vested in the Coast Guard under 46USC 7703 or 7704.
The Issue The issue is whether Kenneth Baurley should be eligible to sit for the examination to become licensed as a real estate salesman.
Findings Of Fact On July 14, 1988, Mr. Baurley's application for licensure as a real estate salesman was received by the Florida Real Estate Commission (Commission). By letter dated October 3, 1988, the Commission notified Baurley that his application had been denied based on his answer to question 6 on the application. In responding to that question, Mr. Baurley disclosed that he had been involved in two criminal proceedings; in both an adjudication of his guilt had been withheld. The first case arose in 1982 on the charge of battery on a law enforcement officer, for which he received 18 months of supervised probation. The incident had its genesis in a shoving match involving Baurley and someone who turned out to be an off-duty police officer for a small municipality. The second was in 1983 for the municipal offense of prowling. Although under no obligation to do so, Mr. Baurley also stated that he had been arrested for driving under the influence in 1988. He was found not guilty on the last charge, so it has no bearing on the decision in this case. Mr. Baurley's response to question 6 was complete and truthful. At the time of these incidents, Mr. Baurley was 19 and 20 years of age. He successfully completed his probation. He has had no further relevant contacts with the criminal justice system for more than five years. Mr. Baurley is now 26 years old. He has resided in Pompano Beach, Florida since 1972, although he attended college in Tallahassee. He is employed currently as President of A Better Limousine Service, Inc. and as a supervisor at Baurley Marine Works, Inc., which is owned by his father. Prior to his employment in these two positions, Mr. Baurley worked in a business established by his brother, Baurley "No Frills" Auto Rental. Before he held these positions, Mr. Baurley attended college in Tallahassee and worked at Doc's Sports Bar and Grill and at Forest Meadows Athletic Club. He was also an adjunct instructor at Florida State University where he taught Tae Ywon Do for college credit. In the course of his employment in the positions set out in Findings 6 and 7 above, Mr. Baurley has been required to interact with patrons, sometimes under difficult circumstances. In all the positions delineated in Findings 6 and 7 (other than the position as adjunct instructor at Florida State University) Mr. Baurley has been required to handle other people's money on at least a weekly basis. Most of the positions have required him to deal with his employers' or customers' money on a daily basis. Petitioner has performed all his employment responsibilities honestly and without incident. Darlene Vlazeny, a real estate salesperson and housewife, met Mr. Baurley in a business capacity by telephone in October, 1988. At that time Mrs. Vlazeny was soliciting in-kind contributions on behalf of a school for hearing impaired children. Mrs. Vlazeny testified that Mr. Baurley's was the only limousine company which agreed to her request to provide limousine services in connection with a benefit for the school at reduced rates. Since the school benefit, Mrs. Valzeny has had social contact with Mr. Baurley. She is aware of the incidents detailed in his answer to question number 6 on his licensure application, but believes he is trustworthy, honest and has a high moral character based on her experiences with Baurley. Mrs. Vlazeny would have no reservation about working with Mr. Baurley in any professional capacity. John Belegesky, a practicing attorney for more than 30 years, has known Mr. Baurley since he was a small boy. Baurley and Mr. Belegesky's son have been friends since grade school. Mr. Belegesky is also aware of Mr. Baurley's past and believes that the acts disclosed in the response to question number 6 to be out of character for him, and the result of youthful indiscretion. Mr. Belegesky trusts Petitioner to have a key to his home, which contains many valuables, and to houseset when he and his wife are away for weeks at a time. Mr. Belegesky would have no reservation about referring his clients, including major developers, to work with Mr. Baurley, if he is licensed. Mr. Belegesky believes Mr. Baurley possesses a high moral character and is honest and trustworthy. Mr. Baurley has matured and regrets his past actions. Mr. Baurley is honest and trustworthy and is of good moral character.
Recommendation Based on the foregoing, it is RECOMMENDED that the Petitioner, Kenneth M. Baurley, be allowed to take the examination for licensure as a real estate salesman and if he passes the examination, be issued a real estate salesman license. DONE and ORDERED this 28th day of April, 1989, in Tallahassee, Florida. WILLIAM R. DORSEY 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 28th day of April, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5537 The proposed findings of Mr. Baurley have generally been adopted. COPIES FURNISHED: Lawrence S. Gendzier, Esquire Department of Legal Affairs 400 West Robinson Street, Room 212 Orlando, Florida 32802 Marion E. Baurley, Esquire 1025 Vermont Avenue, North West Suite 915 Washington, D.C. 20005 Kenneth E. Easley General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32902
Findings Of Fact At all times relevant hereto George H. McDonald was licensed as a Tampa Bay pilot by the State of Florida and issued license number 0000074. On October 29, 1986, Respondent boarded the vessel, Kalliope II, at berth 223, GATX dock, to undock the vessel and pilot it out of Tampa Bay. Kalliope II is a Liberian registered vessel of some 17,000 gross tons, 584 feet in length, and at the time of departure from berth 223, had a maximum draft of 34 feet, six inches. The Kalliope II was moored starboard side to berth 223, and two tugs were available to assist in the undocking. Prior to undocking, the steering gear was tested and performed satisfactorily. A physical check of the steering engine room was not conducted. The bow of the Kalliope was swung out in a pivot test to insure the bow was not aground. This was accomplished by slacking the bow lines and taking in on the stern lines. A similar pivot to ensure the stern was not aground was not accomplished. In undocking the Kalliope II, Respondent had the tug Tampa on the stern on a hawser and the tug Orange on the port bow. As the vessel cleared the slip, the Orange was cast off and stood by with the Tampa towing the Kalliope II into Cut D Channel. Because of the deep draft of the Kalliope II, Respondent did not use the vessel's engines in this maneuver. The Kalliope II as noted above, is 584 feet long and Cut D Channel is 400 feet wide. In order to keep the stern from striking the west bank of the channel while backing out of berth 223, it is necessary to pivot the vessel to move the stern northward while keeping the bow clear of the docks. While backing away from berth 223, the only control of the movement used was that supplied by the tug Tampa. Twice the captain of the Tampa advised Respondent that the stern of the Kalliope II appeared to be getting too close to the Davis Island seawall just west of Cut D Channel. The first time this information was passed to Respondent, he directed the tug to come ahead slow, and the second time the tug was directed to come ahead full. Thereafter, the Kalliope II was aligned in cut D channel. At this time, Respondent ordered the engines ahead slow and had the Tampa cast off. The weather was not a contributing factor at this time. At no time between 2200 hours, the time the Kalliope II left berth 223, until the Kalliope II was finally aligned with Cut D Channel, did Respondent feel the Kalliope II touch bottom. While proceeding down Tampa Bay, Respondent noticed the helmsman was using 200 rudder to keep the vessel in the channel, and directed one of the ship's crew to check the steering engine room. When this was done, it was discovered that the steering mechanism had suffered considerable damage, and the vessel could no longer be controlled with the steering gear. Tugs were again called, and the Kalliope II was returned to a dock. Underwater divers surveyed the damage to the rudder, and other surveyors checked the damage to the gear in the steering engine room. Examination of the rudder showed heavy damage with the trailing edge of the bottom of the rudder bent some 25 degrees from the top of the rudder. Build up of streaks of clay on the port side of the rudder, with the rudder damage sustained, is indicative of the rudder striking the bank while the ship was backing down. (Exhibit 5) Examination of the steering gear inside the steering engine room revealed the steering equipment had been seriously damaged and was inoperable. The damage was consistent with damage to be expected if a ship struck the edge of the channel with the rudder while backing down. Divers searched the west bank of Cut D Channel in the vicinity of berth 223 and found an impact area opposite and just north of berth 223. The impact area was approximately 40 feet long parallel to the channel with clay substrata welled upwards through the sand and mud giving the appearance of the embankment having been struck by a large heavy force. (Exhibit 6) Damage to the Kalliope II's steering equipment was in excess $100,000. Respondent has been a licensed deputy pilot and pilot in Tampa Bay since 1980, has an excellent record, and this is the first time that charges have been brought against him.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility to administer and to enforce the Florida Yacht and Ship Broker's Act, Chapter 326, Florida Statutes. At times prior to June 21, 1991, Respondent Bongiovi was licensed by Petitioner as a yacht broker. Respondent Bongiovi did not hold any license as a yacht broker at any time after June 21, 1991. Respondent AJB Yachts was not licensed as a yacht broker at any time pertinent to this proceeding. Respondent Bongiovi does business as AJB Yachts or AJB Yacht Sales, Inc. There was no evidence that AJB Yacht Sales, Inc., is legally incorporated. On various dates in September and October 1994, Respondent Bongiovi placed two separate advertisements in the classified ads section of the Fort Lauderdale, Florida, Sun-Sentinel newspaper. The first of these ads offered for sale a 41' Hatteras yacht for the sum of $150,000. The second of these advertisements offered for sale a 43" Portofino yacht for the sum of $125,000. Both advertisements contained the Respondent's telephone number, 305-942-7425. On or about May 28, 1993, Respondent, acting as a yacht broker, represented Charles Robbins in the purchase of a 66' Pacemaker yacht named the Sea Cow. The owner of the yacht, Dennis Gaultney, was represented by Mauch Yacht Sales, Inc., the listing broker. As part of the offer made by Mr. Robbins, he gave to Respondent Bongiovi a check in the amount of $33,000 as earnest money. Respondent Bongiovi deposited this money in a bank account at First Union National Bank of Florida, Pompano Beach branch on June 1, 1993. This account is entitled "AJB Yacht Sales, Inc., Escrow Account." Respondent Bongiovi was the sole signatory on this account. Respondent Bongiovi immediately began making withdrawals from this account that were not related to the Robbins transaction. 1/ As of June 10, 1993, the balance in this account was $29,575.54. As of June 21, 1993, the balance was $23,570.83. As of June 30, 1993, the balance was $21,554.04. Negotiations for the sale of the Sea Cow continued between the purchaser and the owner until July 20, 1993. The final version of the owner's proposal was a response to the last proposal made by Mr. Robbins and contained several changes to the last offer made by Mr. Robbins, including a change in the price of the vessel and an extension of the closing date to July 22, 1993. These changes were initialed by the owner of the boat, but they were not initialed by Mr. Robbins. Mr. Robbins never received a signed copy of the final proposal from the owner of the Sea Cow. A survey to evaluate the condition of the vessel was conducted and a copy of the inspection report faxed to Respondent Bongiovi by Jan Mauch of Mauch Yacht Sales on June 9, 1993. The transmittal note that accompanied the fax stated the following: "Here is the 'Schedule A' 2/ to go with the contract. After Charlie sees the survey, have him sign this and Acceptance of Vessel on contract and fax back both to me and I'll have Denny sign." Included in the inspection report was the following information: ". . . an engine inspection did not include a detailed mechanical inspection or test of components. A complete engine survey by a qualified mechanic is recommended in all cases." Mr. Robbins thereafter requested that Respondent Bongiovi arrange for an inspection of the vessel's engines before he accepted the vessel. Mr. Robbins never received an inspection report for the engines, he did not obtain his own financing for the vessel, and he never tendered the balance of the purchase price. The transaction involving Mr. Robbins did not timely close because the inspection of the engines were not completed. Because there was a delay in closing the transaction, the owner sold the yacht to another buyer. Neither Mr. Gaultney nor Mauch Yacht Sales demanded a portion of the $33,000 earnest money deposit. Mr. Robbins demanded the return of his money from the Respondent after he learned that the Sea Cow had been sold to another purchaser. Respondent Bongiovi refused to return the deposit and asserted the position that he was entitled to keep all of the deposit as liquidated damages because the transaction had not closed. Respondent Bongiovi relies on Paragraphs 3 and 4 of the form agreement for his contention that he was entitled to retain the $33,000 deposit as liquidated damages. Those provisions are as follows: The purchase of the vessel is subject to survey - seatrial - capt (sic) - inspection showing condition subject to purchasers (sic) sole judgment and approval to be conducted as soon as practicable after execution of this agreement at the option and expense of the PURCHASER. The PURCHASER shall give written acceptance or rejection of the Vessel by June 10, 1993, and if written notification is not received by the BROKER (A.J.B. Yacht Sales) on or before said date, it shall be construed as acceptance of the Vessel by PURCHASER. In the event, after written or construed acceptance of the Vessel, the PURCHASER fails to pay the balance of the purchase price and execute all papers necessary to be executed by him for the completion of his purchase, pursuant to the terms of this contract, on or before July 10, 1993, the sum this date paid shall be retained by A.J.B. Yacht Sales as liquidated and agreed damage and the parties shall be relieved of all obligations under this contract. In paragraph 2 of the agreement executed by Mr. Robbins on May 28, 1993, there was a provision that the offer submitted by Mr. Robbins was withdrawn if not accepted by June 5, 1993. There was no evidence that there was a final and complete agreement sufficient to bind the parties by June 5, 1993, or at any time thereafter. The agreement executed by Mr. Robbins on May 28, 1993, also contained the following provision: In the event that this sale is not consummated by reasons of unsatisfactory survey . . . the deposit shall be returned, providing all expenses incurred by the PURCHASER against the Vessel have been paid, and this agreement shall be null and void. Mr. Robbins verbally notified Respondent Bongiovi that he would require additional testing on the engine before accepting the vessel. Mr. Robbins did not receive the results of those additional tests and learned soon thereafter that the vessel had been sold to another purchaser. Following the failure and refusal of the Respondents to return the deposit, Mr. Robbins sued the Respondents in the Circuit Court in and for Broward County, Florida, pursuant to the provisions of Sections 772.11 and 812.014, Florida Statutes. Based on the evidence presented, the Circuit Judge in that civil proceeding entered a final judgement for treble damages ($99,000) in favor of Mr. Robbins and against the Respondents based, in part, on the following: . . . On the evidence presented, the Court finds: * * * Plaintiff (Mr. Robbins) gave Defendants (Mr. Bongiovi and his corporation) a check in the amount of $33,000.00 on May 28, 1993, to be held in escrow as a deposit pending accep- tance by the owner of a vessel for the purchase of said motor vessel. Said $33,000.00 was deposited into a bank account owned and/or controlled by Defendants. The owner of the vessel failed to accept Plaintiff's offer within the time provided in the written contract attached to the Amended Complaint; and, therefore, Plaintiff was entitled to return of his $33,000.00 deposit. Plaintiff demanded return of said $33,000.00 deposit, but Defendants failed and refused to return same, which sum has been due with interest since June 5, 1993. Defendants breached the Purchase Agree- ment on June 5, 1993, by failing and refusing to return Plaintiff's deposit of $33,000.00 when the offer to purchase the vessel was not accepted by the owner by that date. Defendants had a fiduciary responsibility to Plaintiff as escrow agents under the Purchase Agreement, and they breached their fiduciary responsibility by failing and refusing to return the $33,000.00 deposit when the offer to purchase the vessel was not accepted by the owner by June 5, 1993. . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order in this proceeding that adopts the findings of fact and conclusions of law and which imposes an administrative fine jointly and severally against the Respondents in the amount of $10,000 for the violations of Count I and imposes an additional administrative fine jointly and severally against the Respondents in the amount of $10,000 for the violation of Count II. DONE AND ENTERED this 29th day of December, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1995.
Findings Of Fact In May of 1977, petitioner filled out respondent's form DBR 710-L, with the help of Lee Brewer from whom petitioner proposed to buy a bar. Ms. Brewer typed answers to the questions on the form, which petitioner dictated. One of the questions on the form inquired "Have you ever been arrested?" Although petitioner told Ms. Brewer that he had been arrested for traffic offenses, they decided after some discussion to answer the question no. Petitioner signed the form in the place provided, right under the words, "I swear or affirm under penalty of perjury . . . that the foregoing information is true to the best of my knowledge Joint exhibit No. 3. On October 26, 1977, petitioner amended his answer to the question as to arrests by listing six arrests, two of which were for traffic offenses. Joint exhibit No. 2. No other evidence as to petitioner's moral character was adduced.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for transfer of a beverage license. DONE and ENTERED this 10th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Manuel W. James, Esquire 419 Fleming Street Key West, Florida 33040 Mr. Frances Bayley, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32304
The Issue Whether Petitioner carried his burden of proving his good moral character and entitlement to a yacht salesperson's license under chapter 326, Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, the oral and documentary evidence, and the record as a whole, the following Findings of Fact are made: Stipulated Facts Respondent is the state agency charged with enforcing chapter 326, the Yacht and Ship Brokers Act, and the administrative rules promulgated thereunder. On June 8, 2016, Petitioner submitted to Respondent an application for a yacht salesperson's license. On Petitioner's application, the application question, number 14, relating to criminal history, was answered "yes." Petitioner failed to attach a complete and signed statement of the charges and facts, together with the dates, names, and location of the court in which the proceedings were held or were pending, as required by the application for the yacht salesperson's license. On October 12, 2012, Petitioner entered a plea of guilty to conspiracy to commit bank and wire fraud, a felony, in the United States District Court, Southern District of Florida, Miami Division, in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was adjudicated guilty of conspiracy to commit bank and wire fraud in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was sentenced to 57 months' incarceration in the custody of the United States Bureau of Prisons in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was sentenced to three years of supervised release following incarceration in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was ordered to pay $6,567,496.00 in restitution in case number 1:1220156CR-UNGARO. On April 22, 2016, Petitioner was released from incarceration and placed under supervised release, set to expire on or about April 21, 2019. Petitioner failed to certify to Respondent that Petitioner has never been convicted of a felony in Petitioner's application for a yacht salesperson's license. Petitioner timely received a copy of Respondent's Notice of Intent to Deny License Application on July 19, 2016. Petitioner completed programs in Residential Drug Abuse Treatment Program, the Wellness Program, and the Community Treatment Services Program at Dollan Mental Health Clinic. Petitioner served his time without issue. Petitioner has been sponsored by a South Florida yacht broker who is going to supervise his activity as a yacht salesman. Facts Adduced at the Hearing Pursuant to chapter 326, Respondent has regulatory jurisdiction over yacht and ship licensees and is responsible for the approval or denial of applications for licensure for yacht salespersons and yacht brokers. Petitioner's younger sister, Beatriz Llorente, who is a practicing real estate and criminal defense attorney, testified. She described Petitioner as a "father figure" to her. She testified that Petitioner's conviction for conspiracy to commit bank fraud "devastated" her, because she felt that her reputation was being questioned.1/ When she drove him to federal prison, Petitioner "asked her for forgiveness." She was familiar with his prison experience. As far as she knew, Petitioner had no disciplinary problems in prison and was awarded maximum gain time. Furthermore, his 57-month sentence was reduced to less than two and one-half years. Despite his incarceration and current probation status, she stated that he is very active with his children and shares a great deal of time with them. He told her, "I will work for the rest of my life to regain your trust." His sister is convinced that Petitioner has overcome his faults, and she emphatically stated he is of good character. On cross-examination, she testified that Petitioner had no drug or alcohol problems when he was growing up, but they arose during the years preceding his conviction. An attorney friend of Petitioner's, Francisco Pines, testified. Pines has known Petitioner since 1988. They attended school together. More recently, their families have interacted and spent time together. They participated together in recreational activities, such as boating and fishing, before Petitioner's incarceration for the federal crime. Since Petitioner was released from prison, Pines has had contact with him three or four times. Pines was also asked about Petitioner's character. In his view, Petitioner knows that what he did was wrong and has made changes to get his life in order. Pines testified that Petitioner is very loving, caring and nurturing with his children. The witness has seen a "change for the better." According to him, Petitioner has always demonstrated a strong work ethic, more so now than before the criminal incident. A licensed mental health counselor, Sandra Rico, was also called by Petitioner. Beginning in 2011, she provided mental health therapy and counseling to Petitioner related to his anxiety due to a crisis in his marriage. She determined that he used and abused alcohol to relieve this anxiety. She treated him on and off until 2013. She also emailed him while he was in federal prison to make sure that he was getting continued treatment for his anxiety and alcohol abuse issues. After he was released from prison, Rico counseled him once a month from July 2016 through the fall of 2016. Her current treatment with him is more in the nature of prevention and maintenance, and to help him develop coping skills. She testified that the therapy he received in prison helped him and that Petitioner changed while in prison. As examples, she cited that he is more involved and willing to do more of her treatment assignments and that he now journals his feelings. Rico related that she is surprised by Petitioner's progress and that she believes he is no longer drinking. He is making better choices and being more careful. She opined that he gathers his thoughts more deliberately now, primarily because he wants to impress his children and reach "goals" he has set for himself. In her opinion, he is of good character now. His treatment with her continues "as needed." Lazaro R. Navarro is the chief executive officer at Florida Yachts International and manages approximately ten sales associates. He has known Petitioner's family for over 15 years. When Petitioner was released from federal prison, the family asked Navarro if he would consider employing Petitioner and sponsoring him. He gave Petitioner a job doing "online marketing," which involved managing leads and performing back office work. Navarro characterized Petitioner as a great asset to his company and trustworthy. He has no doubts about Petitioner and his work habits. Petitioner arrives at work early and is usually the last one to leave. Petitioner has exceeded all of his expectations, and is a very dedicated employee. As the employing yacht broker, Navarro supervises Petitioner and ensures that all of his work is done correctly. Although no details were offered, Navarro testified that Petitioner has accepted full responsibility for his criminal conduct and is a great father. Based upon the financial procedures and protocols used at Navarro's yacht company, he testified that Petitioner would not need to handle or accept any cash as a part of his sales responsibilities. Instead, finances and money exchanges are handled and processed by a closing specialist and the chief financial officer.2/ Navarro commented that he would trust Petitioner with money handling, if that occasion arose. Petitioner offered his own testimony. He received a Florida real estate license in February 2005 and worked for his cousin as a real estate salesperson until 2008. He was indicted for conspiracy to commit bank and wire fraud in March 2012. This federal indictment stemmed from activities in 2006 while he worked as a licensed real estate salesperson. He confirmed that he visited with Rico for mental health counseling related to problems with his wife, as well as anxiety related to the government's criminal investigation of him in 2009. Although his prison sentence did not include mandatory alcohol or drug treatment, he followed the advice of a psychiatrist at the prison and voluntarily enrolled in a residential drug and alcohol abuse treatment program. He also participated in a health and nutrition wellness class for nine weeks. He completed both programs successfully. While in prison, he took several foreign language classes, thinking they would be useful for the yachting business. He also participated in a hazmat (hazardous materials) program outside the prison on a naval base. Apparently, a Navy Admiral retained him for the program. Also, while in prison, he was hired on the naval base to provide cleaning and maintenance services at a dormitory. He was allowed to serve a reduced prison sentence-- 32 months of his 57-month sentence, and he was released six months early to go to a halfway house. While there, he became eligible for home confinement. He was released from home confinement in April 2016. Although he is still under supervised release (probation), he is no longer required to make personal visits and can report to his probation officer remotely through the Internet. He is jointly and severally liable for over $6 million in restitution with the other defendants in his criminal case. It was undisputed that he is current with his restitution payments of $151.00 each month. Petitioner is active in his Catholic Church and gave "his testimony" at a recent church retreat. He characterizes his relationship with his children as being one of honesty and emphasized that it is important to have God in his life. When Respondent called requesting additional information for his application, he promptly provided his federal Termination Report and Certificates of Completion. Pet. Exs. 3, 4, and 5. Petitioner expressed a passion for boating and believes he is good at sales. He wants the yacht salesperson's license, in part, so that he can pay off the criminal restitution more quickly. He claims to no longer act impulsively and believes that his children are the most important thing in his life. On June 8, 2016, Petitioner submitted to Respondent an application for a yacht and ship salesperson's license. On Petitioner's application, he answered question number 14 "Yes," indicating that he had a criminal history.3/ Applicants who answer "Yes" to question number 14 on the application are directed to attach a complete and signed statement of the charges and facts, together with the dates, names, and location of the court in which the proceedings were held or are pending.4/ However, Petitioner failed to submit this statement. When asked about this omission, Petitioner testified, "I turned back for the next one (question), and I didn't bother looking. It shows part of impulsive behavior." Petitioner thought the information request at the bottom of the page he overlooked was simply a part of the next question.5/ Respondent obtained a Florida Department of Law Enforcement criminal background check on Petitioner, which indicated that, on October 12, 2012, Petitioner pled guilty to conspiracy to commit bank and wire fraud. Resp. Ex. 4. Certified court records obtained by the Division indicated that Petitioner was adjudicated guilty of conspiracy to commit bank and wire fraud in violation of 18 U.S.C. § 1349, a felony, and sentenced to 57 months' incarceration in the custody of the United States Bureau of Prisons with three years of supervised release following incarceration. Petitioner was ordered to pay $6,567,496.00 in restitution.6/ Notably, Petitioner's federal "Judgment In A Criminal Case" included Special Conditions of Supervision. This included a "Related Concern Restriction." Petitioner testified that this provision prohibited him from "touch[ing] funds" while under supervised release. His employer at Florida Yacht International wrote a letter, ultimately filed with the probation office, that Petitioner "would not be dealing with any funds." Resp. Ex. 1, pp. 1-7.7/ Petitioner certified on his application that, in February 2005, he was licensed as a real estate sales associate in the state of Florida, having been issued license number SL3111375. Petitioner testified that, in order to become a real estate sales associate, he completed a pre-licensing course; applied with and was approved to take the state licensing exam by the Department of Business and Professional Regulation; and passed the Florida Real Estate Sales Associate Examination. Petitioner stated that, at the time, he was familiar with the laws regulating the profession of real estate contained in chapter 475, Florida Statutes.8/ Petitioner testified that between 2005 and 2008, he worked as a real estate sales associate for Llorente Realty Group, under a supervising broker, Petitioner's cousin. While employed there as a Florida licensed real estate sales associate, Petitioner engaged in an illegal real estate fraud scheme which lead to his 2012 federal criminal conviction. On several occasions, Petitioner provided up to $150,000.00 of his own funds to make seven or eight improper short-term loans of approximately ten to 15 days each. Petitioner made a profit of approximately eight to ten percent per loan.9/ Petitioner testified that these transactions involved buying houses under an individual's name (the straw buyer) and, after closing, executing a quitclaim deed to transfer title of the property to one of the co-conspirators, to whom Petitioner had made the loan. The property was subsequently transferred to the co-conspirator's family trust, leaving the outstanding mortgage in the name of the straw buyer. When the straw buyer failed to pay the outstanding mortgage, the lender would initiate foreclosure proceedings against the straw buyer who was no longer in possession of the property. This fraudulent scheme was carried out against several lending institutions. After the lenders became aware of the scheme, a criminal investigation was initiated. The government characterized his involvement as a breach of his fiduciary duty. In mid-2009, Petitioner was notified that he was under federal investigation for his involvement in the "straw buyer" scheme. After finding out about the investigation, Petitioner began to have relationship problems with his wife and to abuse alcohol. This prompted him to see Rico, a licensed mental health counselor. On March 8, 2012, Petitioner was indicted on eight counts related to the bank fraud scheme. On October 12, 2012, Petitioner entered a plea of guilty and was adjudicated guilty of conspiracy to commit bank and wire fraud, a felony, in the United States District Court, Southern District of Florida, Miami Division, in case number 1:1220156CR-UNGARO. Resp. Ex. 1. Petitioner was incarcerated at Pensacola Prison Camp beginning March 1, 2013. Petitioner earned eight months' "gain time" off of his sentence. Additionally, while incarcerated, Petitioner completed the RDAP, Residential Drug and Alcohol Treatment Program, which qualified Petitioner for a 12-month reduction in his sentence. Due to these reductions and good behavior, Petitioner served only 32 months of his 57-month sentence in federal prison. During his incarceration, Petitioner also completed a nine-week wellness course on various subjects such as nutrition and exercise and worked at Naval Air Station Pensacola, Corry Station Naval Technical Training Center, and the Pensacola Prison Camp. On October 27, 2015, Petitioner was released to a halfway house and shortly thereafter began working for Navarro at Florida Yacht International as a clerk. On November 10, 2015, Petitioner became eligible for home confinement, and, by April 18, 2016, Petitioner completed TDAPT, a transition recovery program. On April 21, 2016, Petitioner was released from custody, and, on April 22, 2016, he was placed under supervised release, currently set to expire on April 21, 2019. Petitioner testified that he has paid $6,000.00 towards the restitution he owes in the amount of $6,567,496.00. As previously mentioned, this restitution is owed with several co- conspirators who are jointly and severally liable with him. Resp. Ex. 1, p. 5. Petitioner testified that he is up to date on required payments pursuant to the order of restitution. Navarro monitors and supervises Petitioner's work and is ultimately responsible for Petitioner under his own yacht broker license. Petitioner is also currently employed as a part- time driver for Uber. In compliance with the Related Concern Restriction of his criminal conviction, Petitioner has not been placed in a position of trust or responsibility over sums of money at Florida Yachts International. Petitioner stated that upon obtaining a job as a clerk with Florida Yachts International, Navarro was required to certify to Petitioner's supervisors through the halfway house that Petitioner "would not be dealing with any funds," pursuant to the "Related Concern Restriction" of Petitioner's Special Conditions of Supervision.10/ Resp. Ex. 1, p. 4; Resp. Ex. 4, p. 51. Following his release from incarceration, Petitioner continues to see Rico for therapy sessions on a monthly basis. Rico provided a letter of recommendation for Petitioner. As mitigation and in an effort to show his good moral character, Petitioner testified that he is not abusing alcohol anymore, has made substantial efforts to reconnect with his children, and has maintained a close relationship with his sister both before and after his incarceration. Licensed yacht salespersons are not restricted and may work under any licensed yacht broker. They may also switch their registered broker if they wish to work for someone else. Additionally, salespersons become eligible to apply for their own yacht and ship broker license after two years as a salesperson. A representative of Respondent, Chelisa Kirkland, testified for Respondent. A yacht salesperson's license is only required for the sale of used or pre-owned vessels in excess of 32 feet. Vessels less than 32 feet and new vessel sales of any size do not require a license. Kirkland confirmed that Petitioner's probation, or court supervision, does not end until April 2019. Applying the statutory and rule criteria, Respondent denied Petitioner's application for a yacht salesperson's license. More specifically, Respondent was concerned about the nature and seriousness of the federal crime, particularly because Petitioner held a professional real estate license at the time the criminal bank fraud offenses were committed. Additionally, as of the date of the application, Petitioner's government supervision and probation had not been completed, and there was a very significant amount of restitution still owed, in excess of $6,000,000.00. Finally, Respondent felt that there had not been a significant passage of time since the conviction in 2012. As a result of the totality of these circumstances, Kirkland recommended that Petitioner's application be denied. She acknowledged that her recommendation was based solely on the conviction for conspiracy to commit bank and wire fraud. She conceded that Florida law does not impose an "automatic" denial just because Petitioner owes restitution, is still under supervision, or was convicted of a federal crime.
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 Condominiums, Timeshares, and Mobile Homes, confirm its previous denial and enter a final order denying Petitioner's application for a yacht salesperson's license. DONE AND ENTERED this 13th day of February, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 13th day of February, 2017.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact On August 31, 1981, Petitioner issued to Respondent certificate number 02-29029, certifying Respondent as a law enforcement officer in the State of Florida. On March 4, 1987, Respondent, who was employed as a deputy sheriff by the Broward County Sheriff's Department, was on duty at Port Everglades in Broward County, Florida. At the time, Port Everglades was closed to the public between the hours of 6:00 p.m. and 6:00 a.m. At approximately 4:00 a.m. on March 4, 1987, a car approached the front gate of the Port. Present in the guard house at the front gate at the time were Port security officers Joel Myers and William Updegraff, along with Respondent. Myers stepped out of the guard house and stopped the vehicle at the front gate. He asked the driver and passenger where they were going. The driver answered incoherently and appeared to be intoxicated. About that time Respondent and Updegraff came out of the guard house and approached the rear of the vehicle. Respondent instructed the driver to pull over as he was being stopped by a deputy of the Sheriff's office. The driver instead accelerated and drove into the Port. At no time was there any danger of the car hitting the Respondent, Myers, or Updegraff. Respondent got into his patrol car and began pursuing the vehicle. Myers and Updegraff remained at the guard house. A radio transmission was sent to other employees of the Port advising them that an unauthorized vehicle was in the Port. A few moments later, Donald Leake, a firefighter employed by the Port who had joined in the search, saw the vehicle heading toward the front gate in order to exit the Port. Leake drove his patrol unit beside the vehicle and motioned to the driver to pull over, which the driver did. The vehicle stopped approximately 100 yards from the guard house at the front gate. Leake sent a radio transmission that he had stopped the vehicle in question. He then approached the vehicle on foot and instructed the driver and passenger to place their hands on the steering wheel and the dash of their vehicle. The occupants followed Leake's instructions and offered no resistance to him. It appeared to Leake as though the driver was intoxicated. Leake walked to the rear of the vehicle and obtained the license tag number. He then approached the driver and asked for his driver's license and vehicle registration, which the driver provided to him. The driver's license identified the driver as Rodney Hensen. Myers and Updegraff had observed Leake stop the vehicle, and Updegraff left the guard house and walked to the vehicle in question in order to offer assistance to Leake if Leake needed any. After Updegraff had reachecd the vehicle, Respondent arrived at the scene, got out of his vehicle, approached Leake and Updegraff, handed them his night stick and radio, and opened the driver's door. After opening the door, Respondent began punching the driver in the chest and face, while chastising the driver for running from a Broward Sheriff's Office deputy. Respondent punched Hensen several times with closed fists for a period of approximately 30 seconds. The driver was offering no resistance or threat at the time of the incident and still had his hands on the dash when the punching began. Hensen began crying and kept asking Respondent why Respondent was doing that to him. As he was being punched, he leaned away from Respondent in a defensive position, trying to protect his face with his hands and arms. The passenger kept his hands on the dash while Respondent was punching Hensen, and he offered no resistance or threat to the Respondent. Neither the driver nor the passenger ever struck the Respondent or threatened to strike him. Both remained passive and in defensive positions, leaning away from Respondent. Both Leake and Updegraff repeatedly called out Respondent's name to get his attention and repeatedly told him to stop. Respondent then grabbed Hensen, and pulled him from the vehicle, pushed him up against the car, and handcuffed Hensen behind his back. Respondent then retrieved his night stick, placed it between Hensen's cuffed arms, twisted it, and caused Hensen to roll down the car and fall to the ground, hitting his head against the ground. Respondent then picked up Hensen and placed him in the back seat of Respondent's patrol car. Respondent then commented to Updegraff, "I thought you would have liked to get in on that." As Respondent was handcuffing Hensen, he instructed Leake to remove the passenger and place him face down on the ground. Leake did so, and the passenger was compliant. Respondent sent a radio transmission to the Broward County Sheriff's Office advising that he had made an arrest and had been involved in a fight in doing so. Almost momentarily, other law enforcement officers arrived at the scene. Respondent was not involved in a fight. He struck Hensen repeatedly without provocation, and it was not necessary for Respondent to strike Hensen to effectuate an arrest. During the ensuing investigation conducted by the Broward County Sheriff's Office, Respondent admitted striking Hensen.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and revoking his certification as a law enforcement officer in the State of Florida. DONE and ENTERED this 20th day of June, 1991, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 20th day of June, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-6708 Petitioner's proposed findings of fact numbered 1-34 and 36 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 35 and 37 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-3 and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4-7, 9-14, 20 and 21 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or argument. Respondent's proposed findings of fact numbered 15-19 have been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Sharon Larson, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael J. Tavalario 270 Southeast Second Avenue Pompano Beach, Florida 33060 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
