94-006033 Lawrence Berton Kutun vs. Florida Land Sales, Condominiums, And Mobile Homes Status: Closed Recommended Order on Monday, April 24, 1995.

Summary: 326.004(8)Florida Statutes precludes licensed salesman whose license was interrupted by his broker's license expiration or own removal of self from broker oversight during 2 years.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE BERTON KUTUN, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6033

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF FLORIDA LAND SALES, )

CONDOMINIUMS AND MOBILE HOMES, )

SECTION OF GENERAL REGULATION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on December 28, 1994

in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned hearing

officer of the Division of Administrative Hearings.

This cause was consolidated with DOAH Case No. 94-5768RU, initiated by a

Section 120.535 F.S. petition challenging a perceived non-rule policy of

Respondent agency. A final order in DOAH Case No. 94-5768RU has been entered

this same date.

APPEARANCES

For Petitioner: Eric B. Tilton, Esquire

Gustafson & Tilton, P.A.

204 South Monroe Street, Suite 200

Tallahassee, Florida 32301

For Respondent: E. Harper Field, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUE

Whether Petitioner is eligible for a yacht and ship broker's license.

PRELIMINARY STATEMENT

Respondent agency issued a Notice of Intent to Reject Petitioner's License

Application on September 19, 1994 upon grounds he had failed to demonstrate his

eligibility for a yacht and ship broker's license by completion of two

consecutive years as a licensed yacht and ship salesman. Petitioner timely

petitioned for a Section 120.57(1) F.S. formal hearing.

Petitioner also filed a Section 120.535 F.S. challenge to a perceived non-

rule policy of Respondent agency whereby the agency presumes that a salesman's

license automatically cancels at the time his employing broker's license expires

or lapses. That challenge is taken up in the final order of instant date

entered in Kutun v. Department of Business and Professional Regulation, Division

of Florida Land Sales, Condominiums and Mobile Homes, Section of General

Regulation, DOAH Case No. 94-5768RU.

The cases were consolidated for formal hearing and share a common

transcript and exhibits.

Petitioner presented the oral testimony of Kathy Forrester, Robert Badger,

and Peter Butler and testified on his own behalf. He had eleven exhibits

admitted in evidence.

Respondent's Exhibit 1 was admitted in evidence. By agreement, Frank

Stanzel testified by deposition, admitted as Respondent's Exhibit 2.

The parties' prehearing stipulation was admitted as HO Exhibit A. Official

recognition was taken of Chapter 326 F.S. and Chapter 61B-60 F.A.C.

A transcript was filed. All timely-filed proposed findings of fact have

been ruled upon in the appendix to this recommended order pursuant to Section

120.59(2) F.S.

FINDINGS OF FACT

1. Applicants for yacht and ship salesman licenses and for broker's

licenses are furnished with copies of Chapter 326 F.S. and applicable agency

rules with the application forms.

2. Petitioner originally applied and was licensed as a yacht and ship

salesman in June, 1992. To be a salesman, one must be associated with a

licensed broker who prominently displays the salesman's license.

3. On April 15, 1994, Petitioner contacted Respondent agency by telephone

to discuss renewal of his salesman's license issued June 3, 1992 and due to

expire under its own terms on June 3, 1994. At that time, Kathy Forrester told

Petitioner that his file reflected that his license had been "cancelled"

effective March 10, 1993 due to a letter received on or about March 1, 1993 from

Petitioner's employing broker, Frank Stanzel.

4. Mr. Stanzel's letter showed that he was relocating his business from

Miami to Ft. Lauderdale and that he wanted his two salesmen's licenses

transferred to the new location. He enclosed with his letter the two salesmen's

licenses for agency action, as required by agency rules. Mr. Stanzel further

reported that Petitioner had left his employ on October 19, 1992, taking his

license with him, so Mr. Stanzel could not return Petitioner's license to the

agency.

5. At formal hearing, Petitioner admitted he had left Mr. Stanzel's firm

on October 19, 1992 to pursue a construction job due to the vigorous insurgence

of the construction industry following Hurricane Andrew. He took the original

of his salesman's license with him and left only copies with Mr. Stanzel in

Stanzel's Miami office. Petitioner asserted, however, that since "all it takes

to sell yachts is a computer and a telephone," he continuously attempted to sell

yachts from his own home after October 19, 1992.

6. After October 19, 1992, Petitioner worked at least 40 hours a week in

construction, did not sell any yachts or ships, and had no contact with Mr.

Stanzel as his employing broker. Mr. Stanzel did not supervise Petitioner's

sales activities after October 19, 1992. Petitioner never returned to Mr.

Stanzel's Miami office after that date. Petitioner has never been in Mr.

Stanzel's new office in Ft. Lauderdale. Mr. Stanzel paid Petitioner a

commission in December 1992 for prior sales work on a yacht sale to Petitioner's

father, which sale ultimately closed in December 1992, but since October 19,

1992, Mr. Stanzel has not considered Petitioner his employee. Petitioner

received no IRS 1099 form (commission salesman's equivalent of employee's W-2

form) from Mr. Stanzel after 1992.

7. After October 19, 1992, Mr. Stanzel did not display Petitioner's

license, as required by agency rules for salesmen in a broker's employ.

8. Nothing precludes a licensed salesman from selling yachts and ships out

of his home if he is overseen by an employing broker. Petitioner had done so

while employed by Mr. Stanzel prior to October 19, 1992. However, by law, all

yacht and ship sale closings must be done through the employing broker's trust

account. Petitioner has closed no sales on his own through Mr. Stanzel's trust

account since October 19, 1992. The two have never discussed a return to work

by Petitioner. They did not communicate on any subject between October 19, 1992

and April 15, 1994.

9. Even if Mr. Stanzel had not written his March 1, 1993 letter,

Petitioner still would not have been able to show that he has attained the type

and duration of training in the sale of yachts and ships which is associated

with two uninterrupted years of broker-supervised salesman's status.

10. On March 22, 1993, five months after Mr. Stanzel heard the last of

Petitioner and approximately three weeks after he notified the agency of

Petitioner's leaving his employ, Mr. Stanzel's broker's license expired. Under

the terms of the agency rules, Mr. Stanzel was required to apply for a new

license. He applied. His broker's license was not renewed retroactively, and

his new license became effective August 30, 1993. For approximately five

months, from March 22, 1993 to August 30, 1993, Mr. Stanzel was not a licensed

Florida broker. Neither Mr. Stanzel nor the Respondent agency notified

Petitioner of this fact nor did anyone notify Petitioner at that time that his

salesman's license was deemed "cancelled" during the broker's lapse.

11. After finding out for the first time on April 15, 1994 that the agency

presumed his salesman's license "cancelled" by Mr. Stanzel's notification that

Petitioner had taken his salesman's license and left Mr. Stanzel's employ,

Petitioner and his father prevailed upon Mr. Stanzel to execute an affidavit

dated May 19, 1994 to the effect that Mr. Stanzel had misunderstood, now

believed Petitioner had been diligently working at yacht sales after October 19,

1992, and wanted Petitioner's salesman's license reinstated. The affidavit was

submitted to the agency.

12. Although Ms. Forrester had misgivings about the affidavit, the agency

reinstated Petitioner's salesman's license, effective April 29, 1994, after

receiving the affidavit (TR 25-28). The reinstated license still had the

original expiration date of June 3, 1994. The agency did not reinstate

Petitioner's salesman's license retroactive to October 19, 1992 when Petitioner

went into construction work fulltime, to the date of Mr. Stanzel's original

broker's license expiration, or to the date of Mr. Stanzel's new broker's

license. Petitioner accepted his salesman's license as reinstated.

13. Petitioner did not renew his salesman's license on June 3, 1994, so it

expired by its own terms.

14. On July 21, 1994, Petitioner filed an application to be licensed as a

yacht and ship broker, together with the required bond, fee, and fingerprints.

15. On August 2, 1994, Peter Butler, Head of the Section of Yacht and Ship

Brokers, wrote Petitioner a deficiency notice, explaining that the agency

regarded Petitioner's salesman's license "cancelled" during the lapse of his

employing broker's license.

16. The agency has no rule which specifically states that when an

employing broker's license expires, his salesmen's licenses are automatically

cancelled.

17. The language employed in the deficiency notice was, "any salesman

licenses held by [the employing broker] were considered cancelled (sic) for that

period of time [the period while the employing broker's license was

expired/lapsed] because they did not have an actively licensed broker holding

their license." [Bracketed material added for clarity.] This language became

the focus of the concurrent Section 120.535 F.S. proceeding.

18. The deficiency notice did not refer to the prior "cancellation" of

Petitioner's salesman's license based on Mr. Stanzel's March 1, 1993 notice that

Petitioner had left his employ effective October 19, 1992.

19. The deficiency notice cited Section 326.004(8) F.S. [1993] which

provides:

Licensing.-

(8) A person may not be licensed as a broker

unless he has been a salesman for at least 2

consecutive years, and may not be licensed as a

broker after October 1, 1990, unless he has been

licensed as a salesman for at least 2 consecutive

years.

20. The deficiency notice also specified that if Petitioner paid another

dollar for a fingerprinting fee and provided an explanation of his 1992 yacht

sales, the agency would issue a new salesman's license.

21. There was no way Petitioner could alter the past lapse of the broker's

license.

22. Petitioner did not pursue relicensure as a salesman.

23. Bob Badger, an agency investigator, submitted a report to Mr. Butler

dated September 1, 1994 expressing his opinion that even with Mr. Stanzel's

after-the-fact affidavit, Petitioner's salesman's license would have been

interrupted by the fact that he had no licensed broker holding his salesman's

license during Mr. Stanzel's broker's license lapse of five months. He further

concluded that Petitioner's salesman's license was "suspended" for a short

period for not renewing his salesman's license bond.

24. After review of the investigation report, on September 19, 1994, the

agency issued its Intent to Reject Petitioner's broker's application pursuant to

Rule 61B-60.002(6) F.A.C. alluding to the deficiency notice and citing Section

326.004(8) F.S., for Petitioner's failure to complete two consecutive years as a

salesman.

25. Even if Mr. Stanzel's broker's license had been reinstated without

lapse, thereby by implication reinstating Petitioner's salesman's license

without lapse, it would not retroactively change the fact that Petitioner has

not attained the type and duration of training in the sale of yachts and ships

which is associated with two uninterrupted years of broker-supervised salesman's

status.

26. Petitioner claimed that he was "cancelled by ambush," because the

agency did not timely notify him of Mr. Stanzel's lapsed broker's license, and

further asserted that the agency's failure to timely notify him constituted a

violation of Rule 61B-60.002(6) F.A.C.

27. At the present time, the agency writes a letter to salesmen advising

them when their employing broker's license is cancelled. However, such a letter

would not have been written to Petitioner, even if it were being used by the

agency on March 22, 1993 when Mr. Stanzel's original broker's license expired,

because Petitioner's license had already been effectively cancelled by his own

removal of his license from Mr. Stanzel's office, by his assuming other full

time employment in construction, and by his removing his yacht-selling

activities, if any, from Mr. Stanzel's immediate oversight.

28. Section 326.004(14)(a) and (b) F.S. and rules enacted thereunder

clearly place on the broker the responsibility of maintaining and displaying the

broker's and salesmen's licenses as well as providing for a suspension of a

salesman's license when a broker is no longer associated with the selling

entity. Typically, salesmen turn in their licenses through the original broker

for cancellation by the agency and receive new ones when they move from one

broker's oversight to another's. Salesmen who are employed by one broker also

switch their salesman's licenses to another active broker whenever the first

broker disassociates from a yacht sales company and moves to another company,

quits, retires, or lets his broker's license lapse. Due to the common dynamics

of the employment situation whereby salesmen are under the active supervision of

their employing broker in the company office, they usually know immediately when

a broker's license is in jeopardy or the broker is not on the scene and

supervising them. This knowledge is facilitated by the statutes and rules

requiring that all licenses be prominently displayed in the business location.

Anybody can look at anybody else's license on the office wall and tell when it

is due to expire. If licensees are in compliance with the statute and rules, no

active salesman has to rely on notification from the agency with regard to the

status of his own or his broker's license. In the present case, Petitioner

removed himself from all contact with Mr. Stanzel as of October 19, 1992.

Therefore, he did not know what was occurring in the office or with any

licenses.

29. All agency witnesses testified substantially to the effect that since

they have been employed with the agency and so far as they could determine since

its inception, agency personnel have relied on Sections 326.002(3), 326.004(8),

326.004(14)(a) and (b) F.S. and Rules 61B-60.005 and 61B-60.008(1)(b) and (c)

F.A.C. to preclude licensing someone who has not been actively supervised by a

Florida licensed employing broker for two consecutive years. More specifically,

agency personnel have always applied Sections 326.004(14)(a) and (b) to place on

the broker the responsibility of maintaining and displaying the broker's and

salesman's licenses as well as providing for a suspension of the salesman's

license when his broker is no longer associated with the sales entity.

30. The agency has always interpreted the word "broker" as used in Chapter

326 F.S. and Chapter 61B-60 F.A.C. to mean "Florida licensed broker." See also,

Section 326.002(1) and 326.004(1) F.S. and Rule 61B-60.001(1)(g) F.A.C.

31. These interpretations are in accord with the clear language of the

applicable statutes and rules.

32. Petitioner asserted that he had been treated differently than others

similarly situated because other salesmen were notified by the agency when their

employing broker's license lapsed and because the agency cancelled their

salesman's licenses for other reasons but did not cancel their salesman's

licenses because of their broker's license's lapse. The facts adduced did not

closely parallel his own situation so as to demonstrate disparate treatment.

33. Petitioner did not demonstrate that the agency affirmatively set out

to notify any other salesman that his salesman's license was cancelled due to a

lapse of his employing broker's license. Rather, the agency was tipped off by a

complaint that Bryan Long's salesman's license had expired February 27, 1993.

The agency investigated and determined that the license of Mr. Long's broker had

expired on February 14, 1993, before Long's own salesman's license had expired.

The broker's name was Herbert Postma. Upon discovering that Long and Postma

were selling yachts without licenses, the agency investigated the broker's

transactions and commissions paid. As a result of its investigation, the agency

discovered that two more salesmen, Villalon and Grzeszczak, held salesman's

licenses which, like Long's license, had expired during the time Postma's

license was lapsed.

34. As with Petitioner, the agency did not attempt to notify any of the

salesmen when their broker's license lapsed. The disciplinary investigation of

Long's sales and of Postma's transactions and commissions peripherally notified

the other salesmen of their lapsed salesman's licenses and of the broker's

lapsed license.

35. Petitioner is correct that none of the four licensees were listed as

"cancelled" in the agency's records, and Brian Long entered into a Consent Order

with the agency which did not mention he was "cancelled" because of the broker's

license's lapse. However, the duration dates of each type of license were shown

in the agency records. Like the current situation, the new licenses were not

issued retroactive to the date of each salesman's prior license's expiration or

retroactive to the date of the broker's prior license expiration. Also like

Petitioner's reinstatement, none of these licenses showed a reinstatement

without a lapse.

36. The agency printout for yet another salesman, Preston, showed that

like Petitioner, he was "cancelled" when he had no broker and was reinstated 21

days later. The printout also shows that like Petitioner, Preston was not

reinstated retroactively.

37. None of the named salesmen were shown to have been granted a broker's

license as having been employed by a broker for two consecutive years.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

39. Having been denied the broker's license for which he applied,

Petitioner has standing to bring the Section 120.57(1) and 120.535 F.S.

petitions.

40. The concurrent Section 120.535 F.S. challenge resulted in the

following language being determined not to be an unpromulgated rule:

Any salesman license held by [the employing

broker] were considered cancelled (sic) for

that period of time because they did not have

an actively licensed broker holding their

license. [Bracketed material supplied for clarity]

41. The agency has done nothing more than make a reasonable interpretation

of the existing statutes and rules and apply them to the facts.

42. The relevant existing statutes and rules, with emphasis supplied, are:

326.002 Definitions.-As used in ss.

326.001-326.006, the term:

(1) "Broker" means a person who, for

or in expectation of compensation; sells,

offers, or negotiates to sell; buys, offers,

or negotiates to buy; solicits or obtains listings

of; or negotiates the purchase, sale, or exchange

of, yachts for other persons.

* * *

(3) "Salesman" means a person who, for or in

expectation of compensation, is employed by a

broker to perform any acts of a broker.

326.004 Licensing.-

(1) A person may not act as a broker or salesman

unless licensed under the Yacht and Ship Brokers'

Act. The division shall adopt rules establishing

a procedure for the biennial renewal of licenses.

* * *

(6) The division may deny a license to any

applicant who does not:

(d) Demonstrate that he is a resident of this state

or that he conducts business in this state.

* * *

(8) A person may not be licensed as a broker unless

he has been a salesman for at least 2 consecutive

years, and may not be licensed as a broker after

October 1, 1990, unless he has been licensed as a

salesman for at least 2 consecutive years.

* * *

(13) Each broker must maintain a principal place

of business in this state and may establish branch

offices in the state. A separate license must be

maintained for each branch office. ...

(14)(a) Each license must be prominently displayed

in the office of the broker.

(b) Each salesman's license must remain in the

possession of the employing broker until cancelled

or until the salesman leaves such employment.

Immediately upon a salesman's withdrawal from the

employment of a broker, the broker must return the

salesman's license to the division for cancellation.

61B-60.001 Definitions and Scope.

(1) For purposes of these rules, the following

definitions apply:

* * *

(d) "Principal place of business" shall mean the

primary location of the business of a yacht and ship

broker.

(e) "Prominently displayed" as it refers to a

license of a broker or salesman in accordance with

section 326.004, Florida Statutes, shall mean that

the license is placed in a conspicuous location on

the premises and is readily visible from he entrance

of the principal place of business or branch office.

* * *

(g) "Foreign brokers or salesmen" shall mean those

brokers or salesmen who primarily conduct business

in states other than Florida or in countries other

than the United States and do not maintain a valid

license from the division.

61B-60.005 Principal Place of Business; Broker's

Branch Office License Application.

(3) A broker shall be responsible for maintaining

and prominently displaying in each branch office,

a broker's branch office license for the broker,

and the licenses of all salesmen conducting business

in that branch office. A broker shall prominently

display at the principal place of business, the

broker's license and the licenses of all salesmen

conducting business in the principal place of business.

61B-60.007 Renewal of Salesmen and Brokers' License;

Branch Office License Renewal.

(1) Notification of License Expiration. The division

shall notify all licensees of impending license

expiration, not less than 60 days prior to expiration,

on a DBR Form 31-007, APPLICATION FOR YACHT AND SHIP

LICENSE RENEWAL/BRANCH OFFICE RENEWAL, effective

11-25-90, incorporated by reference.

(2) Submission of Application for License Renewal.

Licensees shall apply for renewal of their license

on a DBR Form 31-007, APPLICATION FOR YACHT AND SHIP

LICENSE RENEWAL/BRANCH OFFICE RENEWAL, accompanied

both by a $500 renewal fee and by the bond or letter

of credit or proper continuation certificate, as

provided by rule Be Florida Administrative Code.

Completed applications shall be postmarked not less

than 30 days prior to the expiration of the current

license.

* * *

(6) The holder of an expired license who fails to

timely renew his license within 30 days after such

expiration and who desires to perform yacht and ship

broker services shall be required to make an initial

application to the division and proceed as provided

in rule 61B-60.004, Florida Administrative Code.

61B-60.008 Suspension, Cancellation, and Revocation

Upon Cause Shown.

(1) The license of a broker or salesman, as

applicable, shall be suspended or cancelled where:

* * *

(b) A salesman withdraws from the employment of a

broker. In such a case, the broker shall immediately

return the salesman's license to the division by

certified mail; or

(c) A broker severs his professional relationship

with a business entity so that the remaining salesmen

are no longer employed by a broker licensed as required

pursuant to chapter 326, Florida Statutes. In such a

case, the broker shall immediately notify the division

and the salesman shall immediately return his or her

license to the division by certified mail pending

installation of a new broker at the respective business

entity.

43. By accepting the broker's notification in 1993 that Petitioner was no

longer in his employ, the agency in effect "cancelled" Petitioner's salesman's

license. In 1994, by imputing the broker's lapsed license to the Petitioner's

salesman's license, the agency in effect "cancelled" Petitioner's salesman's

license. Each time, the agency made a fully permissible interpretation of

existing statutes and rules.

44. In making such "cancellations", the agency also was required by its

own Rule 61B-60.002(6) F.A.C. to advise Petitioner of a window to challenge each

proposed final agency action. See also, Board of Trustees of the Internal

Improvement Trust Fund v. Barnett, 533 So. 2d 1202 (Fla. 3d DCA 1988) to the

effect that once having granted permission or licensure, an agency cannot revoke

without complying with the Florida Administrative Procedure Act. In

Petitioner's case, the agency did not give the timely notice required in March

1993, but this failure was the equivalent of harmless error.

45. In March 1993, the agency deemed Petitioner's salesman's license

cancelled because of his own removal of himself from the supervision of his

employing broker. This was a permissible and reasonable interpretation of the

existing statutes and rules. See, all statutes and rules previously cited,

particularly Rule 61B-60.008(1)(b) and (c) F.A.C. Although the agency had

failed to timely notify Petitioner of the 1993 "cancellation," he was permitted

to challenge the agency action and present Stanzel's affidavit when he found out

about the agency's position on April 15, 1994. Petitioner's license was

reinstated when he requested reinstatement, but the reinstatement was not

retroactive. He accepted that reinstatement as of April 29, 1994 and did not

timely challenge it for not being retroactive. He cannot reopen that issue now.

46. Even without notification by the agency, Petitioner would have known

of the broker's license's lapse in 1993 if he had only remained under the

broker's supervision in the broker's office, but the agency did not notify him

of that proposed final agency action in 1993 because agency personnel already

considered him previously cancelled on other grounds. Because he was already

cancelled, personnel were not applying the agency's interpretation of the

existing statute and rules concerning the broker's license expiration at that

point.

47. The agency deemed Petitioner's salesman's license cancelled when, by

its August 2, 1994 deficiency letter, and ultimately its September 19, 1994

notice of intent to reject, it imputed Stanzel's broker's license's lapse to

Petitioner's salesman's license. This also was a permissible and reasonable

interpretation of the statute and rules.

48. When the 1994 deficiency letter and intent to reject applied the

agency interpretation that the lapse in the broker's license constituted a lapse

for Petitioner too, the agency timely provided Petitioner with notice, a window

of opportunity, and the instant formal administrative hearing pursuant to

Section 120.57(1) F.S.

49. Reviewing all the statutes and rules previously cited, it is

straightforward and uncomplicated reasoning that since the statute prohibited

Mr. Stanzel from acting as a broker when not licensed, his salesmen were

likewise prohibited and unlicensed during his license's lapse. Moreover, while

Petitioner's salesman's license was not prominently displayed by a licensed

employing broker, Petitioner could not legitimately sell yachts and ships. He

certainly could not be legitimately transacting business through the trust

account of an unlicensed broker, nor could an unlicensed broker properly oversee

his sales. The agency's interpretation in pari materia of the statutes and its

duly promulgated rules to the effect that a lapsed broker's license precludes

Petitioner from establishing he has worked as a salesman for two consecutive

years is an entirely permissible and reasonable construction of the statutes and

rules.

50. The agency is charged with protecting the public from untrained and

unscrupulous sellers of yachts and ships. The legislature has determined that

two consecutive years' worth of broker oversight is necessary to fit a salesman

to become a broker. The agency has only implemented that goal by its action

here.

51. When an agency committed with authority to implement a statute

construes a statute in a permissible way, that interpretation must be sustained

even though another interpretation may be possible or even, in the view of some,

a preferable interpretation. See, State Department of Health and Rehabilitative

Services v. Freamet Realty, Inc., 407 So.2d 238, 241-242, (Fla. 1st DCA 1981).

One challenging the facial validity of a statute must show that the agency's

interpretation of the statute is clearly erroneous or unauthorized. See, North

American Publications, Inc. v. Department of Revenue, 436 So.2d 954, 955 (Fla.

1st DCA 1983). The administrative construction of a statute by an agency or

body charged with its administration is entitled to great weight and will not be

overturned unless clearly erroneous. See, State ex rel Biscayne Kennel Club v.

Board of Business Regulation, 276 So.2d 823 (Fla. 1973). A reviewing court must

defer to an agency's interpretation of an operable statute as long as that

interpretation is consistent with legislative intent and is supported by

substantial, competent evidence. See, Public Employees Relations Commission v.

Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985).

52. The agency's decision to deny the broker's license should stand for

the foregoing reasons alone but also because the evidence herein affirmatively

shows that even if Mr. Stanzel's broker's license had never lapsed, neither Mr.

Stanzel nor any licensed broker oversaw and assumed responsibility for

Petitioner's activities as a salesman for two consecutive years. That

professional oversight, and not the mere physical possession of a salesman's

license and bond, is clearly the intent of Section 326.004(8) F.S.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Business and Professional Regulation enter a

final order denying Petitioner's application for licensure as a yacht and ship

broker.

RECOMMENDED this 24th day of April, 1995, at Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of April, 1995.

APPENDIX TO RECOMMENDED ORDER 94-6033

The following constitute specific rulings, pursuant to S120.59(2), F.S.,

upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-5 Accepted except that legal argumentation pejorative words, and

unnecessary, subordinate, and/or cumulative material has not been utilized.

6 Rejected as not credible. Covered in substance in FOF 5, 6, and 8.

7 Accepted that this is what the letter stated. However, not

dispositive due to the facts as presented. See FOF 11.

8 Rejected as mere legal argument.

9-10 Accepted except that legal argumentation prejorative words, and

unnecessary, subordinate, and/or cumulative material has not been utilized.

11 Rejected as mere legal argument.

12-19 Accepted except that legal argumentation prejorative words, and

unnecessary, subordinate, and/or cumulative material has not been utilized.

20 Rejected as mere legal argument.

21-25 Rejected in FOF 32-37 upon the greater weight of the evidence as

a whole and in part as mere legal argument.

26-42 These proposals are mixed legal argument and some fact proposals,

largely without any citation to the record. The legal argumentation has been

rejected as not proposed facts. The facts not accepted are either rejected as

covered specifically within the recommended order or are rejected as not

dispositive. Ms. Forrester's testimony is mischaracterized in proposed fact 24,

and it is rejected for that reason. The legal arguments are addressed in the

conclusions of law.

Respondent's PFOF:

1-19 The proposed facts have been accepted except that unnecessary,

subordinate, and/or cumulative material has not been utilized. The interspersed

legal argumentation has been rejected as not proposed facts, but has been

addressed in the conclusions of law.

COPIES FURNISHED:

Eric B. Tilton, Esquire

GUSTAFSON & TILTON, P.A.

204 South Monroe Street, Suite 200

Tallahassee, FL 32301

E. Harper Field, Senior Attorney

Department of Business and

Professional Regulation

Division of Florida Land Sales,

Condominiums and Mobile Homes

1940 North Monroe Street

Tallahassee, FL 32399-0750

Jack McRay, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, FL 32399-0792

Henry M. Solares, Director

Division of Florida Land Sales,

Condominiums and Mobile Homes

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.