State of North Carolina s34

STATE OF NORTH CAROLINA IN THE OFFICE OF COUNTY OF WAKE ADMINISTRATIVE HEARINGS 05 CFA 1644 ALAN D. LOESER, SR., ) Petitioner, ) ) v. ) PROPOSAL FOR DECISION ) NORTH CAROLINA AUCTIONEER ) LICENSING BOARD, ) Respondent. )

THIS MATTER was heard before Senior Administrative Law Fred G. Morrison Jr. on January 26, 2006, in Raleigh, North Carolina.

APPEARANCES Petitioner: Paul C. Ridgeway Everett, Gaskins, Hancock & Stevens, LLP Post Office Box 911 Raleigh, North Carolina 27602

Respondent: Jeffrey P. Gray Rose Rand Attorneys, P.A. Corporate Plaza Building 333 Fayetteville Street, Suite 1508 Raleigh, NC 27601

Whether the law and evidence support the Respondent’s revocation of Petitioner’s auctioneer license pursuant to a Notification of Probable Cause to Revoke NCAL #7177 dated March 29, 2005.

STATUTES AND RULES AT ISSUE

N.C.G.S. § 85B-8(a)(1) 21 NCAC 4B .0404(a)(2) 21 NCAC 4B .0404(a)(6) 21 NCAC 4B .0404(a)(6)(A) 21 NCAC 4B.0404(a)(6)(B) 21 NCAC 4B.0404(a)(16) 21 NCAC 4B.0405(b) 21 NCAC 4B.0601(a) 21 NCAC 4B.0601(e) STIPULATED FACTS

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received proper notice of hearing required pursuant to N.C.G.S. § 150B-38, and that Petitioner received notice of the proposed revocation of his auctioneer license mailed by Respondent on March 29, 2005.

2. The North Carolina Auctioneer Licensing Board (Respondent) has the authority under Chapter 85B of the North Carolina General Statutes and Title 21 of the North Carolina Administrative Code, Chapter 4B, to license auctioneers, apprentice auctioneers, and auction firms, including denying, suspending or revoking such licenses or assessing civil penalties.

FINDINGS OF FACT

1. The evidence for the Respondent consisted of the testimony of two (2) witnesses: Robert A. Hamilton, Executive Director of the Respondent, and Bruce Marshburn, Investigations Coordinator.

2. Petitioner was licensed as an auctioneer on August 16, 2000, holds licenses number 7177, and is also a Designated Person for Auctions Worldwide, LLC, NCAL #7672, a licensed auction firm.

3. In late Fall, 2003, Mr. Hamilton received information from an attorney which revealed that the Petitioner and Auctions Worldwide had been sued and that there was an outstanding judgment of debt against them. The Petitioner had not reported this civil action to the Board as required by the Board’s laws and administrative rules.

4. In addition to the requirement that civil suits involving auction related activities be reported to the Board within 30 days, the Board’s annual renewal application asks if the licensee has “had any civil actions filed against you in the past 12 months.” On his previous three signed applications for renewal, the Petitioner had answered “no” to this question.

5. Following an investigation, it was determined that the Petitioner had failed to report numerous civil actions where he or Auctions Worldwide, or both, were defendants, including the civil action involving Mystic Color Lab which was initially brought to the Board’s attention. It was also discovered that he had failed to provide the Board with changes of address.

6. During the course of the investigation, the Petitioner provided false or misleading information to Mr. Hamilton or the Board’s investigator regarding control or ownership of Auctions Worldwide and who actually signed various application forms.

7. A copy of the Notice of Probable Cause sent to the Petitioner on March 29, 2005, was 2 admitted into evidence as Respondent’s Exhibit 1.

8. Bruce E. Marshburn testified that his initial letters to the Petitioner were returned. He determined that the Petitioner had failed to notify the Board of a change of address. After numerous attempts, the Petitioner, or the attorney who represented Auctions Worldwide or him in the Mystic Color Lab lawsuit, responded to the Board’s requests for information.

9. Mr. Marshburn determined that a check of the public data base for the Connecticut judicial system indicated that the Petitioner, or Auctions Worldwide, of which he is a Designated Person, had the following civil actions filed against them:

a. Case Number CV000371662-S, Plaintiff - Windmere Corp., Bridgeport, CT; Defendants - Alan D. Loeser & Co., Alan D. Loeser, David Loeser;

b. Case Number CV000378384-S, Plaintiff - Stop & Shop Supermart, Bridgeport, CT; Defendants - Alan D. Loeser & Co., Alan D. Loeser, Sarah Loeser;

c. Case Number CV010381315-S, Plaintiff - Majorie Chrisman, Bridgeport CT; Defendants - Alan D. Loeser & Co., Alan Loeser;

d. Case Number CV010387124-S, Plaintiff - Rotorex, Bridgeport, CT; Defendants - Auctions Worldwide, Inc., Alan D. Loeser, Alan D. Loeser & Co.;

e. Case Number CV010383939-S, Plaintiff - Boston Precision Parts & Co., Bridgeport, CT; Defendants - Alan D. Loeser & Co.

f. Case Number CV040084926-S, Plaintiff - Leviton Mfg. Co., Inc., Milford, CT; Defendant - Auctions Worldwide;

g. Case Number CV040568369-S, Plaintiff - Mystic Color Lab, New London, CT; Defendants - Auctions Worldwide, A. David Loeser, Jr., Alan David Loeser; and

h. Case Number 2004SVCV322, Plaintiff - Georgia Architectural, Gainsville, GA; Defendant - Auctions Worldwide.

10. In a letter dated January 21, 2005, the Petitioner admitted to Mr. Marshburn that he had failed to report the above civil actions to the Board as required and that they were all auction related. A copy of this letter was admitted into evidence as Respondent’s Exhibit 6.

11. In an attempt to resolve this matter the Petitioner attempted, by and through his legal counsel, to voluntarily surrender his North Carolina auctioneer license to the Board. The Board refused to accept his surrender offer.

CONCLUSIONS OF LAW

A preponderance of the evidence, including the Petitioner’s own admissions, shows that the Petitioner gave a false statement or false information on one or more applications for renewal

3 of his license in violation of 21 NCAC 4B0404(a)(6); failed to completely cooperate with an investigation in violation of 21 NCAC 4B0404(2)(6)(A); made one or more false statements or gave false information in connection with the Board’s investigation in violation of 21 NCAC 4B0404(2)(6)(B); and failed to property disclose the numerous civil actions filed against Auctions Worldwide or him as required by 21 NCAC 4B0405(b)(2) in violation of 21 NCAC 4B0404(a)(16).

Further, a preponderance of the evidence shows that the Petitioner failed to notify the Board of his change of address within ten (10) days of the occurrence of the change in violation of 21 NCAC 4B.0601(a) and (e).

PROPOSED DECISION

Based upon the Findings of Facts and Conclusions of Law set forth above, it is proposed that the North Carolina Auctioneer Licensing Board’s Notification of Probable Cause to Revoke the Petitioner’s license as an auctioneer dated March 29, 2005, be upheld; or in the alternative, since the Petitioner has surrendered his license, that it not be considered for renewal until on or after April 1, 2011, upon submission of an application showing there have been no subsequent misdeeds.

NOTICE

The entity making the Final Decision in this contested case is required to give each party an opportunity to file exceptions to this Proposal for Decision, to submit proposed findings of fact and to present oral and written arguments to the agency. The agency is required by N.C.G.S. § 150B-42(a) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.

The entity that will make the final decision in this contested case is the North Carolina Auctioneer Licensing Board.

This the 14th day of March, 2006.

______Fred G. Morrison Jr. Senior Administrative Law Judge