95-000201 Florida Land Sales, Condominiums, And Mobile Homes vs. James Rich Status: Closed Recommended Order on Monday, July 24, 1995.

Summary: Licensure as yacht broker not required for secretarial activities; negotiation and expectation of compensation required by definition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF FLORIDA LAND SALES, )

CONDOMINIUMS AND MOBILE HOMES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0201

)

JAMES RICH, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on May 3, 1995, in

Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: E. Harper Field, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: James Rich, pro se

c/o Bob Anslow Yacht Sales

400-B North Flagler Drive

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations

contained in the Notice to Show Cause filed against him, and, if so, what

disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

Petitioner filed a Notice to Show Cause alleging that Re-spondent had

violated a rule regulating his conduct as a licensed yacht salesman, and

Respondent timely requested a formal hearing regarding that allegation. This

cause was thereafter transferred to the Division of Administrative Hearings to

conduct a formal proceeding.

Petitioner presented the testimony of James J. Courchaine and Peter P.

Butler, Sr. Respondent James Rich testified on his own behalf and presented the

testimony of William Fiermonti. Additionally, Petitioner's composite exhibit

numbered one was admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A specific

ruling on each proposed finding of fact can be found in the Appendix to this

Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a licensed yacht

salesman. At the time of the transaction which is the subject of this

proceeding, Respondent was employed by Van Hart Yacht Sales, Inc.

2. Respondent had customers who were interested in purchas-ing a 37' Irwin

sailboat. Respondent checked the computer list-ings and found that Northside

Marine Sales, a yacht brokerage firm, had a listing for a 1979 37' Irwin known

as the "Ark Royal". Respondent telephoned Northside and spoke with a secre-

tary. She advised him that the man most familiar with the vessel was not there

but that if Respondent sent his customers to Northside, someone would show them

the vessel.

3. Respondent's customers, Paul Copeland and Val S. Meeker, went to

Northside Marine Sales to look at the boat. When they arrived there, only

William Fiermonti was present. Fiermonti was a salesman for new boats at

Northside and, accordingly, did not need to be licensed as a yacht broker or

salesman, and he was not so licensed. Fiermonti told Copeland and Meeker that

he knew nothing about sailboats and could not assist them, but he could let them

look at the boat. He then took them to the boat and unlocked it. He told them

to lock it when they were finished, and he left them alone to look at the boat.

4. On March 7, 1993, Copeland and Meeker entered into a Purchase Agreement

and Deposit Receipt with the owners of the vessel Ark Royal. The contract

called for final payment and delivery of the vessel to occur on May 1, 1993.

The purchase agreement is a standard form contract on Van Hart Yacht Sales,

Inc., letterhead. Paragraph numbered 15 in that contract calls for the seller

to pay Van Hart Yacht Sales, Inc., a commission of ten percent of the gross sale

price. William Fiermonti witnessed a signature on that contract.

5. On March 23, 1993, Maryland National Bank, the lien holder on the

yacht, sent to Fiermonti correspondence stating the bank's agreement to the sale

of the vessel. A fax transmittal cover page dated March 24, 1993, reflects that

Fiermonti sent something to Respondent with the notation that it was regarding

the Ark Royal. On April 6, 1993, Respondent sent a fax trans-mittal to

Fiermonti enclosing the "acceptance of vessel form", suggesting a closing date

of April 24, 1993, and suggesting that the closing would probably be scheduled

at the bank since the bank was holding the title.

6. The closing statement for the transaction was prepared by Respondent on

Van Hart Yacht Sales, Inc., stationery. Respon-dent took the closing statement

to the closing. He handled the closing and gave Northside a check for its share

of the com-mission.

7. Fiermonti had no involvement in the transaction other than witnessing a

signature on a document, contacting a bank to obtain a "pay-off" figure,

transmitting to Respondent a document by fax, and receiving from Respondent a

document by fax. The transmittal and document he received from Respondent, he

gave to Robert Skidmore, the owner of Northside Marine Sales and a licensed

yacht broker. Fiermonti received no commission as a result of the sale of the

Ark Royal and did not expect to receive a commission. He did not attend the

closing. Fiermonti did not solicit the listing for the vessel. He did not

offer the vessel for sale or sell it. He did not negotiate the contract for

sale and had no involvement in the negotiations. In short, Fiermonti did not

act as a salesman or broker as to the Ark Royal trans-action.

8. Similarly, Respondent correctly believed that he had located the yacht

in question as a result of a listing by a licensed yacht broker. He further

believed that he was "co-brokering" the vessel with Robert Skidmore.

9. A complaint was filed against Robert Skidmore and Northside Marine

Sales concerning a different matter. While Petitioner's investigator was

investigating that matter, he saw the fax transmittal sheets between Fiermonti

and Respondent in Northside Marine Sales' records. The investigator contacted

Respondent and requested copies of the documents related to the sale of the Ark

Royal. Respondent transmitted the documents to the investigator that same day

by fax transmittal. The investi-gator never interviewed Fiermonti regarding his

role in the Ark Royal transaction.

10. On April 13, 1994, Petitioner issued a Notice to Show Cause against

Robert Skidmore, alleging, among other things, that Skidmore had allowed

unlicensed salemen to conduct brokered yacht transactions. In August of 1994

Skidmore and Petitioner entered into a Final Consent Order. That Final Consent

Order specifi-cally recites that Skidmore desired to resolve the matter without

the necessity of further proceedings and that Skidmore did not admit to any

wrongdoing or violation of the statutes and rules regulating his conduct. The

Findings of Fact section of that Final Consent Order did not include any finding

of wrongdoing on Skidmore's part. Rather, the Findings of Fact section finds as

facts only that Petitioner issued a Notice to Show Cause alleging statutory

violations and then quotes the allegations made in the Notice to Show Cause. In

other words, the factual findings include that a Notice to Show Cause was

issued, not that the allegations in that Notice to Show Cause were true.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has juris-diction over the

parties hereto and the subject matter hereof. Section 120.57(1), Florida

Statutes.

12. Chapter 326, Florida Statutes, authorizes Petitioner to license yacht

and ship brokers and salesmen. Under the statutory definitions, licensure is

only required when vessels which exceed 32' in length and which weigh less than

300 gross tons are bought or sold on behalf of another person, that is, used

vessels. The sale of new vessels of any size or of used vessels 32' in length

or less requires no licensure. Sections 326.002(1) and (4), Florida Statutes.

The Notice to Show Cause filed herein alleges that Respondent from March 7,

1993, through May 1, 1993, co-brokered a yacht transaction for a 1979 37' Irwin

sailboat with William Fiermonti, a salesman who was not licensed by Petitioner,

in violation of Rule 61B-60.001(3)(a), Florida Administrative Code. Petitioner

has failed to meet its burden of proof that such violation occurred.

13. It is uncontroverted that the Ark Royal is a used ves-sel of

sufficient size requiring licensure of any broker involved in its sale and

purchase. It is also uncontroverted that Fiermonti was not a licensed yacht

broker or salesman at the time of the transaction in which Respondent, a

licensed salesman, par-ticipated. Rule 61B-60.001(3)(a), Florida Administrative

Code, provides that brokers and salesmen licensed by Petitioner will be deemed

to have violated Chapter 326, Florida Statutes, ". . . if they transact business

with unlicensed brokers or salesmen otherwise subject to jurisdiction of chapter

326, Florida Statutes." Accordingly, the dispositive issue in this proceeding

is whether Fiermonti acted as a broker or salesman as defined in Chapter 326.

Section 326.002(1) and (3) provide the definitions which are controlling in this

case, as follows:

(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.

14. Fiermonti does not meet the statutory definition of a salesman

requiring licensure since the evidence is uncontroverted that Fiermonti neither

received compensation nor expected to receive compensation, and no evidence was

offered that Fiermonti was employed by his broker "to perform" the acts of a

broker. Similarly, Fiermonti does not meet the definition of a broker since the

evidence is uncontroverted that he did not receive compensation; that he did not

expect to receive compensation; that he did not sell, offer to sell or negotiate

the sale of the Ark Royal; that he did not buy, offer to buy, or negotiate to

buy the Ark Royal, and that he did not solicit or obtain the listing on the Ark

Royal. Rather, Fiermonti unlocked the boat, witnessed a signature, called a

bank for a "pay-off figure", sent a document to a licensed yacht salesman at a

licensed yacht broker-age firm, and received a fax transmittal. None of those

activ-ities is covered by Chapter 326, Florida Statutes.

15. Rather, as Respondent correctly argues, any person can act as a

witness to a legal document, make a telephone call to a bank, and operate a fax

machine without a license. The activi-ties performed by Fiermonti are

activities which are performed at any brokerage business, whether it be a yacht

broker or a mortgage broker or a real estate broker, by a secretary or

receptionist. The statutory definitions of broker and of sales-man contemplate

persons who negotiate the sale or purchase of a qualifying vessel with or on

behalf of the buyer or the seller. There is no evidence that Fiermonti had any

contact with the owner/seller of the vessel other than witnessing a signature,

an act which could have been performed by even a stranger on the street.

Similarly, there is no evidence that Fiermonti nego-tiated with the purchaser of

the vessel or had any contact with the purchaser other than unlocking the boat,

and telling the purchaser he could not be of assistance and to lock the boat

when the purchaser was finished looking at it. Petitioner's strained

construction of the term broker or salesman which it contends applies to

Fiermonti is without basis in law or logic.

16. Since there is no evidence that Fiermonti acted as a broker or

salesman subject to the jurisdiction of Chapter 326, Florida Statutes, there is

no evidence that Respondent "co-brokered" the transaction with Fiermonti.

Although on some level Fiermonti became Respondent's contact at Northside Marine

Sales regarding this transaction, the statute only requires licensure of those

persons in contact with the buyer or the seller and acting on behalf of either

of them. Moreover, no evidence was offered as to who negotiated with the

seller or with the purchaser during the Ark Royal transaction.

17. Finally, Petitioner's argument that Skidmore admitted in his Final

Consent Order that he allowed Fiermonti to broker the Ark Royal transaction is

contrary to the clear language of the Final Consent Order, which states the

opposite.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered finding Respondent not guilty of

the allegations and dismissing the Notice to Show Cause filed against him.

DONE and ENTERED this 24th day of July, 1995, at Tallahassee, Florida.

___________________________________

LINDA M. RIGOT, 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 July, 1995.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 2, 3, 5, and 6 have

been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 1 has been rejected as

not constituting findings of fact but rather as constituting a conclusion of

law.

3. Petitioner's proposed finding of fact numbered 4 has been rejected

since it is not supported by the evidence in this cause.

4. Respondent's first unnumbered paragraph has been rejected as not

constituting a finding of fact but rather as constituting a conclusion of law.

5. Respondent's second unnumbered paragraph has been adopted either

verbatim or in substance in this Recommended Order.

COPIES FURNISHED:

Tracy Sumner, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Mr. James Rich

c/o Bob Anslow Yacht Sales

400-B North Flagler Drive

West Palm Beach, Florida 33401

Henry M. Solares, Director

Department of Business and

Professional Regulation

Division of Florida Land Sales,

Condominiums, and Mobile Homes

1940 North Monroe Street

Tallahassee, FL 32399-0792

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 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.