98-002378 Florida Land Sales, Condominiums, And Mobile Homes vs. Nivardo Beaton Status: Closed Recommended Order on Tuesday, October 13, 1998.

Summary: Person who advertised for sale a used 33-foot boat and expected to receive a commission on the sale acted as a yacht broker. Because he did not have a license, he should be fined $250.00.

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. 98-2378

)

NIVARDO BEATON, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on August 21, 1998, in Tallahassee, Florida, before Patricia Hart

Malono, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: William Oglo, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Nivardo Beaton, pro se

14812 Southwest 81st Street

Miami, Florida 33193

STATEMENT OF THE ISSUE

Whether the Respondent committed the violation alleged in

the Notice to Show Cause dated March 30, 1998, and, if so, the

penalty which should be imposed.

PRELIMINARY STATEMENT

In a Notice to Show Cause dated March 30, 1998, the

Department of Business and Professional Regulation, Division of

Florida Land Sales, Condominiums and Mobile Homes ("Division"),

charged that Nivardo Beaton violated Section 326.004(1), Florida

Statutes (1997), because he acted as a yacht broker without a

license. Mr. Beaton timely requested a formal administrative

hearing, and the Division forwarded this matter to the Division

of Administrative Hearings for assignment of an administrative

law judge. By Notice of Video Hearing, this case was scheduled

for formal hearing on August 21, 1998; at the request of the

parties, the video teleconference hearing was cancelled and the

hearing was held in Tallahassee, Florida.

At the hearing, the Division presented the testimony of

Peter N. Renje, who is employed by the Division as an

investigator, and Peter P. Butler, who is head of the Division's

General Regulation Section. Petitioner's Exhibits 1A-H, 2, 3A-D,

4, and 5 were offered and received into evidence. Mr. Beaton

testified in his own behalf, and Respondent's Exhibits 1 and 2

were offered and received into evidence. The Division presented

the testimony of Peter Butler on rebuttal.

The transcript of the proceeding was filed with the Division

of Administrative Hearings on September 4, 1998, and the Division

timely filed proposed findings of fact and conclusions of law,

which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Business and Professional Regulation,

Division of Florida Land Sales, Condominiums and Mobile Homes, is

the state agency responsible for licensing and regulating yacht

and ship brokers in Florida. Section 326.003, Florida Statutes

(1997).

2. Nivardo Beaton is a resident of Miami, Florida. He is

not now, and never has been, licensed as a yacht broker or

salesperson. The Division has no record of any prior enforcement

or disciplinary actions against Mr. Beaton.

3. At the times material to this action, Mr. Beaton worked

at Avanti Powerboats, where he did assembly, electrical

installation, and motor installation work on the boats built by

Avanti Powerboats. Although he was originally a salaried

employee of Avanti Powerboats, at the times material to this

action, Mr. Beaton worked on a "piece work" basis and was paid a

flat fee when he completed rigging a boat. Mr. Beaton also had a

verbal agreement with Raul Rodriguez, the owner of Avanti

Powerboats, whereby he was to be paid a five-percent commission

for each direct sale of an Avanti boat and a one-and-one-half-

percent commission for each Avanti boat sold by a dealership he

had recruited as an Avanti distributor.

4. An advertisement appeared in the October 17, 1997,

edition of South Florida Boat Trader in which "Beaton Boat Sales

and Service - Nivardo Beaton" offered three new boats and three

used boats for sale. The three new boats were all Avantis; the

three used boats were a twenty-one-foot Corona, a thirty-five-

foot Contender, and a thirty-three-foot Avanti. Mr. Beaton owned

the Corona; the Contender was owned by a friend, and Mr. Beaton

did not expect any compensation from the sale of this boat; and

the Avanti, an open-decked fishing boat, had been taken in trade

by Mr. Rodriguez and was owned by Avanti Powerboats. Pursuant to

a verbal agreement with Mr. Rodriguez, Mr. Beaton was to receive

a five percent commission on the sale of this used thirty-three-

foot Avanti.

5. The advertisement was seen by an employee of the

Division, and, when the Division's records revealed that neither

Mr. Beaton nor Beaton Boat Sales and Service were licensed to

offer yachts for sale, an investigation was initiated. Peter

Renje, the Division's investigator, contacted Mr. Beaton on

November 19, 1997, and informed him that he could not offer for

sale used boats over thirty-two feet in length with the

expectation of compensation unless he was licensed as a yacht

broker.

6. After Mr. Renje's first visit, Mr. Beaton immediately

contacted the South Florida Boat Trader and discontinued the

advertisement. He also provided Mr. Renje with the materials he

requested to assist him in his investigation.

7. Mr. Beaton abandoned the idea of doing business under

the name of Beaton Boat Sales and Service. Mr. Beaton never sold

a boat or transacted any other commercial transaction through

this business. The only action Mr. Beaton took under the name of

Beaton Boat Sales and Service was placing the advertisement in

the October 17, 1997, issue of the South Florida Boat Trader.

8. Mr. Beaton has worked in the management and production

areas of the boat-building industry for over twelve years; he

began working in sales in 1997. Before working for Avanti

Powerboats, he worked for a short time selling Boston Whalers,

Zodiac Inflatables, and Key West Boats. He also was employed as

a full-time salesman by Fisherman's Paradise, Inc., a division of

Warren Craft Distributing, Inc., from January to June 1997.

9. Mr. Beaton was aware at the time he placed the

advertisement in the South Florida Boat Trader that a person must

have a broker's license in order to sell used yachts. He was not

aware at the time he placed the advertisement that he needed to

have a broker's license to offer for sale the thirty-three-foot

Avanti open fishing boat.

10. The evidence presented by the Division is sufficient to

establish that Mr. Beaton, doing business as Beaton Boat Sales

and Service, offered for sale a used boat over thirty-two feet in

length and that he expected to earn a commission if he sold the

boat. The evidence is also sufficient to establish that

Mr. Beaton worked with Avanti Powerboats as an independent

contractor, that he cooperated with the Division in its

investigation, that he immediately cancelled the subject

advertisement, and that he did not do any business as Beaton Boat

Sales and Service.

11. Mr. Beaton's testimony that he was not aware that a

thirty-three-foot open-decked fishing boat fell within the

statutory definition of a yacht is accepted as credible.

Although Mr. Beaton had a few months' experience in boat sales,

there is no evidence to establish that he engaged in the sale of

used boats or that he sold boats in excess of thirty-two feet in

length. The evidence presented by the Division is, therefore,

not sufficient to permit the inference that Mr. Beaton knew or

should have known that offering for sale a used boat over thirty-

two feet in length without a broker's license violated Chapter

326. Likewise, the evidence presented by the Division is not

sufficient to permit the inference that Mr. Beaton intended to

violate Chapter 326.

12. There was no evidence presented by the Division to

establish that any member of the public suffered any injury as a

result of Mr. Beaton's action in advertising for sale the used

Avanti.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Section 120.569 and .57(1),

Florida Statutes (1997).

14. In Section 326.002(1), Florida Statutes (1997), a

broker is defined as "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."

15. A "yacht" is defined in Section 329.002(4), Florida

Statutes (1997), as "any vessel which is propelled by sail or

machinery in the water which exceeds 32 feet in length, and which

weighs less than 300 gross tons."

16. Section 326.004, Florida Statutes (1997), provides in

pertinent part

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

salesperson unless licensed under the Yacht

and Ship Brokers' Act. . . .

(2) A broker may not engage in business as

a broker under a fictitious name unless his

or her license is issued in such name.

(3) A license is not required for:

(a) A person who sells his or her own

yacht.

* * *

(d) A transaction involving the sale of a

new yacht.

17. On the basis of the facts found herein, the Division

has proven by clear and convincing evidence that Mr. Beaton

violated Section 326.004(1).

18. Section 326.006(2)(d)4. provides that the Division

"may impose a civil penalty . . . against an unlicensed

person . . . , for any violation of this chapter or a rule

adopted under this chapter. A penalty may be imposed for each

day of a continuing violation, but in no event may the penalty

for any offense exceed $10,000."

19. In determining the recommended penalty in this case,

consideration has been given to the aggravating and mitigating

factors set forth in Rule 61B-60.008, Florida Administrative

Code, which provides in pertinent part:

(4) Guidelines for Determining Civil

Penalties:

(a) To assure consistency with respect to

the amount of any civil penalty to be

assessed in a consent order or final order,

the following guidelines have been

established. Aggravating or mitigating

circumstances, when considered, may increase

or decrease the respective amount of any

civil penalty.

(b) Examples of aggravating or mitigating

circumstances may include the following:

1. Criminal record of licensee;

2. Civil litigation history bearing upon

issues relating to the administration of

chapter 326, Florida Statutes;

3. Administrative action history, either

formal or informal, bearing upon issues

relating to the administration of chapter

326, Florida Statutes;

4. Cooperation of respondent relating to the

Division's investigation and prosecution of

the instant matter;

5. Whether the Division required the

assistance of external parties in preparation

of the Division's case;

6. Whether the licensee's conduct was

intentional;

7. Whether the licensee, or any agent

engaged by the licensee, knew or should have

known that the subject misfeasance or

malfeasance constituted a violation of

chapter 326, Florida Statutes, or the rules

promulgated thereunder, or any other law or

rule having impact upon the respective

proceeding;

8. Circumstances precipitating the

investigation;

9. Nature of the violation;

10. History of similar violations; and

11. Any combination of any of the above

factors.

Based on the findings of fact herein, there are no aggravating

factors present in this case, but there are several mitigating

factors that would support a lesser penalty than the $2,500

standard penalty for a violation of Section 326.004(1), Florida

Statutes.

20. In determining the recommended penalty in this case,

consideration has also been given to the penalties imposed in the

consent orders and the final orders submitted by the Division.

In this respect, it is significant that two of the orders are

Consent Orders reflecting negotiated penalties, one order is a

Final Order on Default, and one order is a Final Order entered

after an informal hearing at which the respondent failed to make

an appearance. There is no indication in these orders that

consideration was given to the aggravating and mitigating factors

set forth in Rule 61D-60.003(4)(b) in determining the penalties

imposed therein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Florida Land Sales,

Condominiums and Mobile Homes, enter a final order finding

Nivardo Beaton guilty of violating Section 326.004(1), Florida

Statutes (1997); ordering Mr. Beaton to cease and desist from any

other violations of Chapter 326, Florida Statutes, and the rules

promulgated thereunder; and imposing a civil penalty in the

amount of $250.

DONE AND ENTERED this 13th day of October, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of October, 1998.

COPIES FURNISHED:

William Oglo, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Nivardo Beaton, pro se

Beaton Boat Sales and Services

14812 Southwest 81 Street

Miami, Florida 33193

Philip Nowicki, Ph.D., Director

Division of Florida Land Sales,

Condominiums and Mobile Homes

1940 North Monroe Street

Tallahassee, Florida 32399-1030

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulations

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this R ecommended O rder. Any exceptions to

this R ecommended O rder should be filed with the agency that will

issue the F inal O rder in this case.