Respondent. )
Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings in Fort Myers, Florida, on May 8, 1985.
For Petitioner: Michael J. Alderman, Esq.
For Respondent: Gregory E. White, Esq.
This cause arose upon an Administrative Complaint filed by the Petitioner, Department of Highway Safety and Motor Vehicles (Department) against the D.J.M. RV Center, Inc., wherein it is alleged, in essence, that the Respondent sold a 1984 Yellowstone motor home to Leroy and Evelyn Kehrer and failed to transfer title to those purchasers within 20 days from the date of delivery of the vehicle, in violation of Section 319.23(6) and
320.27(9)(o), Florida Statutes, and that said Respondent violated Section 320.27(9)(p), Florida Statutes by allowing one George Pieropan to use the Respondent's dealer license in conducting the a sale of the said motor home, when George Pieropan was not a licensed dealer or dealer's designee.
The cause came on for hearing as noticed. The Petitioner presented five witnesses and eight exhibits, all of which were admitted into evidence. The Respondent presented three witnesses, consisting of Respondent's President, Don Meyer, Sales Manager, Richard Tessier, and Salesman Howard Turner. Additionally, the Respondent presented four exhibits which were admitted into evidence. At the conclusion of the proceedings, the parties requested a transcript and an extended briefing schedule for filing proposed findings of fact and conclusions of law subsequent to the filing of the transcript, concomitantly waiving the 30-day requirement for rendition of the Recommended Order pursuant to Rule 28-5.402. The proposed findings of fact and conclusions of law were timely filed by both parties and are specifically addressed in the Appendix attached hereto and incorporated by reference herein.
The issue to be resolved in this proceeding concerns whether Respondent committed the charged violations of the legal authority cited in the Administrative Complaint and specifically, whether George Pieropan acted on authority of the Respondent, whether there was an agency relationship between the Respondent and Pieropan, whether Pieropan was licensed as a dealer and whether Respondent, or Pieropan as Respondent's agent, failed to effect the transfer of title within the required 20 days.
The Petitioner is an agency of the State of Florida charged with regulating the licensure and licensure status of motor vehicle dealers and enforcing the statutory and regulatory authority related to standards of business practice by such dealers. D.J.M. RV Center, Inc. (Respondent) holds recreational vehicle dealer license no. 5RV-1222 issued by the Petitioner. The Respondent's licensed place of business is located at 3635 Fowler Street, Fort Myers, Florida 33901.
The Respondent is engaged in the business of buying, selling and trading recreational vehicles. It operates under the name D.J.M. RV Center, Inc. That name alone is depicted on the only exterior sign on the Respondent's place of business at the above address.
For approximately a two-year period, one George Pieropan, with Respondent's permission, occupied an office
in the building occupied by Respondent and bought and sold recreational vehicles at that same location as Respondent. Pieropan purported to be operating a separate recreational vehicle consignment dealer business named "Suncoast RV," a proprietorship. There was, however, no sign on the exterior of the Respondent's dealership building advertising Suncoast RV. Both businesses operated from the same location. There was no segregation of the recreational vehicle inventory of Suncoast RV and D.J.M. RV Center, Inc. The vehicles were intermingled on the display lot. George Pieropan was not a licensed motor vehicle dealer.
George Pieropan and Suncoast RV had a separate checking account, but recreational vehicles purportedly being offered for sale by Suncoast RV were advertised in the newspaper as being offered for sale by D.J.M. RV Center, Inc., the Respondent. When individuals came to the sales lot to shop for are creational vehicle, they were shown vehicles by employees of both Suncoast RV and the Respondent, regardless of which entity the vehicle was being sold by or consigned to. Keys for the recreational vehicles purportedly being sold by Suncoast RV or Pieropan, were intermingled with the keys for vehicles being sold by the Respondent on a keyboard in the Respondent's office.
Mr. Don Meyer, the President of the Respondent corporation, established that the Respondent purchased a 1978 "Honey" recreational vehicle from George Pieropan which George Pieropan had taken in trade from Mr. and Mrs. Leroy Kehrer. The Respondent sold that vehicle to one James Killem. The bill of sale to Killem for the vehicle was signed by George Pieropan on behalf of the Respondent corporation, D.J.M. RV Center, Inc.
In approximately October of 1984, Mr. and Mrs. Kehrer had gone to the Respondent's location to shop for a recreational vehicle. While they were at the Respondent's dealership, Mr. and Mrs. Kehrer were shown a Yellowstone recreational vehicle by Howard Turner. Howard Turner was a salesman for the Respondent and also sold vehicles for Suncoast RV (Pieropan). During their initial visit, Salesman Turner advised the Kehrers that they would have to bring in their current recreational vehicle to have its trade-in value appraised. The Kehrers thus brought in their "Honey" recreational vehicle the next day and Mr. Turner discussed a price with them, with D.J.M. RV Center,
Inc. ultimately purchasing the 1978 Honey vehicle. After Mr. Turner and the Kehrers agreed upon an appraised value for their Honey vehicle, which was to be a trade-in, they traded it in on a Yellowstone recreational vehicle which Mr. Turner showed them. The Yellowstone vehicle had been placed on consignment with George Pieropan by its owner, Marcus Heck. During this visit Mr. Turner introduced the Kehrers to George Pieropan, referring to him as "one of the owners of the business" or "his boss."
The next day, Pieropan called Mr. Kehrer and shortly thereafter came to the Kehrer's home where a sales agreement was executed for purchase of the new Yellowstone recreational vehicle which had been shown them by Howard Turner, the Respondent and Pieropan's sales employee.
As a result of the purchase agreement, the Kehrers issued a check and, at Pieropan's behest, made out the check to "Suncoast RV." At this same time, however, Pieropan told them that Suncoast RV was the branch of the Respondent's dealership that handled used recreational vehicles on consignment such as the subject Yellowstone vehicle. In any event, the Kehrer's paid George Pieropan
$17,200 in cash and traded in their "Honey" recreational vehicle with an accompanying trade-in allowance of $13,542 to make up the purchase price for the Yellowstone recreational vehicle. Ultimately, D.J.M. RV Center, Inc. sold that Yellowstone vehicle to one James Killem and George Pieropan executed the bill of sale to Killem on behalf of the Respondent corporation, D.J.M. RV Center, Inc., after D.J.M. purportedly purchased that vehicle from Pieropan.
The Kehrers have never received a title for the Yellowstone recreational vehicle they purchased through George Pieropan. Marcus Heck, the previous owner of that vehicle was contacted by Don Meyer, co-owner of the Respondent corporation and had been quoted a sales price for the Yellowstone vehicle by Meyer. Mr. Heck received a check for $15,200 from Pieropan, but that check was dishonored for insufficient funds. Sometime thereafter, Mr. Heck received another check for partial payment of the amount due him in the amount of $9,000. That check was drawn on the Respondent's account and signed by Richard E. Tessier, who was the Respondent corporation's sales manager at the time. Thus, although the Yellowstone vehicle was purportedly consigned by Marcus Heck its original owner to
George Pieropan, George Pieropan was acting on behalf of the Respondent corporation in selling the vehicle to the Kehrers' with the assistance of Howard Turner, who was clearly the Respondent's salesman, as evidenced in part by the Respondent corporation's attempt to partially honor the check issued on insufficient funds by George Pieropan who had since left the state.
Thus, although Pieropan purported to be operating a separate recreational vehicle dealer business named "Suncoast RV," his business and the Respondent's were so intermingled as to constitute one business entity for all practical purposes. This is borne out by testimony of Marcus Heck, who established that on one occasion when Don Meyer (owner of the Respondent) was on an extended vacation, the Respondent's entire business operation was run by Pieropan in his absence. The businesses were not segregated as to office space, office entrances, driveways, or fences and inventories were co-mingled. Marcus Heck had been contacted by Don Meyer, the co-owner of the Respondent corporation, and quoted the sales price for the Yellowstone vehicle which was to be sold to the Kehrers through Suncoast RV. Suncoast RV was described by Pieropan to Heck as being part of D.J.M. RV Center, Inc. Both Suncoast RV Center, Inc. and Pieropan paid office rent to the brother of Don Meyer, one of the co-owners of D.J.M. RV Center, Inc. Finally, it was established by Howard Turner, the salesman for both D.J.M. and Suncoast and Respondent's witness, that both entities used one common telephone line and that he, Turner, sold recreational vehicles for both Pieropan and Suncoast and D.J.M. RV Center and signed sales orders for both.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1983).
The Respondent is charged with failing to transfer title to the motor vehicle purchased by the Kehrers within 20 days of date of delivery in violation of Section 319.23(6), Florida Statutes (1983) and with Section 320.27(9)(o), Florida Statutes (Supp. 1984), and with permitting an individual who is not an employee or authorized designee of the Respondent to use the
Respondent's dealer license in the sale of the said motor vehicle in violation of Section 320.27(9)(p), Florida Statutes (Supp.1984). Those statutory provisions provide:
Section 319.23(6):
In the case of the sale of a motor vehicle or mobile home by a licensed dealer to a general purchaser, the certificate of title shall be obtained in the name of the purchaser by the dealer upon application signed by the purchaser, and in each other case such certificate shall be obtained by the purchaser. In each case of transfer of a motor vehicle or mobile home, the application for certificate of title, or corrected certificate, or assignment or reassignment, shall be filed within
20 days from the delivery of such motor vehicle or mobile home to the purchaser. If the certificate of title is lost or unavailable at the time of sale to a retail purchaser, an application for duplicate title shall be made within 20 days of delivery of the motor vehicle or mobile home to the purchaser, and the application for transfer of title shall be filed within
20 days of receipt of the original or duplicate certificate of title. An applicant shall be required to pay a fee of $10, in addition to all other fees and penalties required by law, for failing to file such application within the specified time. A licensed dealer need not apply for a certificate of title for any motor vehicle or mobile home in stock acquired for stock purposes: but, upon a transfer thereof, he shall either give the transferee a reassignment of the certificate of title on such motor vehicle or mobile home or shall make a notation on the face of the application by transferee as provided in s. 319.21.
Section 320.27(9)(o):
Failure to apply for transfer of a title as prescribed in s. 319.23(6).
Section 320.27(9)(p):
Use of the dealer license identification number by any person other than the licensed dealer or his designee.
There is no question given the above Findings of Fact and the evidence of record that the Kehrers, the purchasers of the recreational vehicle in question, never received title to their recreational vehicle nor did the Respondent properly seek and effect a transfer of that title within the 20 days required by Section 319.23(6), Florida Statutes, or in any other time period. The issue to be resolved, more pointedly is, however, whether the Respondent is chargeable with that failure to effect transfer of the title or whether culpability for that omission properly lies with George Pieropan only. In order to determine whether the Respondent herein is culpable, it must be determined whether George Pieropan and the Respondent were in an agency relationship, either express or implied, which, if such were the case, would render the Respondent liable and culpable for the acts or omissions of its agent. See King v. Young, 107 So. 2d 751 (Fla. App., 2nd DCA 1958): Lynch v. Walker, 31 So. 2d 268 (1947). An agency relationship between a principal and an agent ordinarily arises in a contractual context with the parties mutually agreeing that that relationship shall exist and the extent of the authority granted the agent by the principal being a matter of mutual agreement. However, it is quite common to find the creation of an agency through words, conduct or prior course of dealing and it is not necessary that an express contract of appointment or agency be created between parties. Agency may be inferred from the related facts or circumstances in a given case or implied from prior dealings. Direct evidence is not indispensable and the circumstances in a given situation may be relied upon, such as the parties' conduct and their ongoing relations with each other to establish whether or not an agency existed with regard to the subject matter of the contract or dispute. McCabe v. Howard, 281 So. 2d 362 (Fla. App., 2nd DCA, 1973) Watkins v. Sims, 88 So.764 (1921) Stuyvesant Corporation v. Stahl, 62 So. 2d 18 (Fla., 1952) Quinn et al. v. Phipps, 113 So. 419 (Fla., 1927).
Similarly, in Sapp v. Tallahassee, 348 So. 2d 363 (Fla. Appeals, 1st DCA, 1977) it was held that the question of "agency" for purposes of application of the "Respondeat Superior" doctrine, although normally arising out of a contractual relationship created by agreement of the parties, could also be inferred from past dealings between the parties and was subject to proof by the facts and circumstances of the particular case, including the words and conduct of the parties. In that opinion it was additionally held that, in effect, the putative principal could be liable on a theory of "apparent authority" or "estoppel," upon proof that the putative principal held the "agent" out to the public as being possessed of the requisite authority to act on his behalf and proof that the plaintiff or one seeking to assert the principal agent relationship was aware of the authority and relied on it to his or her detriment.
It is clear from the above Findings of Fact that a set of circumstances existed clearly raising a principal agent relationship between the Respondent herein and George Pieropan. Those two parties conducted their business at the same location, with only one advertising sign on the front of the business which was that of the Respondent with a common entrance with vehicles co-mingled on the sales lot and with the co-owner, Mr. Meyer, of the Respondent, entering into the negotiations surrounding the obtaining of an appropriate sales price for the Yellowstone vehicle for Mr. Heck which was sold by Howard Turner and Pieropan to the Kehrers. When the check to the Kehrers from Pieropan was dishonored, the Respondent, through its sales manager, Mr. Tessier, partially honored the insufficient check of Pieropan by paying a check for $9,000 to Heck drawn on the Respondent's account.
These facts, together with the fact that Pieropan ran the business when Meyer was on vacation, the fact that he was described to the Kehrers by Turner as one of his "bosses" or one of the "owners," together with Pieropan's own similar representation to the Kehrers that Suncoast RV was merely a branch of Respondent's business the fact that when the Respondent sold the "Honey" recreational vehicle to James Killem, the bill-of-sale was signed by Pieropan on behalf of the Respondent corporation, when considered with the other facts found above, reveal that the businesses of both Pieropan and the Respondent were so intermingled and intertwined that they were in effect conducted as one
business involving the sale of recreational vehicles, such that George Pieropan, also trading as Suncoast RV, should be treated as an agent acting on the behalf of the Respondent. This is especially true in view of the fairly lengthy course of dealing, in excess of two years, during which those two parties operated under this arrangement.
Thus, the sale of the vehicle to the Kehrers with no effectuation of a title transfer, which is clearly a chargeable omission under the above statutory authority, is indeed chargeable to the Respondent as the Petitioner has alleged in its Administrative Complaint and proven, thus the Respondent has violated Sections 319.23(6) and 320.27(9)(o), Florida Statutes (1983, Supp. 1984).
The Respondent has additionally been charged with violating Section 320.27(9)(p), Florida Statutes involving the use of a dealer license by any person other than the licensed dealer or his designee. The facts in the case at bar clearly reveal that D.J.M. RV Center, Inc.'s dealer license number was not used by George Pieropan during the transaction in question. Rather, Mr. Pieropan used a dealer license number different from that of the Respondent, nor was it Mr. Pieropan's license number either since he was not a licensed dealer at all. It was merely a fictitious or at least unauthorized dealer number. In view of the above conclusion that the agency relationship between the two parties existed, it must be concluded that Pieropan was indeed a "desiqnee" of the Respondent licensed dealer in this situation and that therefore there was no violation of the subsection cited last above. This circumstance of course, is part and parcel of the conclusion that the Respondent itself, as the principal in the transaction above, was responsible for effecting the transfer of the title to the vehicle which was not done according to the statutes governing title transfers. In short, the Respondent has been established to be guilty of the violations of Section 319.23(6) and 320.27(9)(o), Florida Statutes, (1983, Supp. 1984). The Department is empowered, under the section cited last above, to suspend or revoke the Respondent's dealer license and to impose a fine not to exceed $1,000 for each violation against the licensee for violations of Section 320.27(9), Florida Statutes (Supp. 1984).
