STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

O. C. ALLEN, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 87-2613

) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on September 15, 1987, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented as follows:

For Petitioner: Mr. Ocie C. Allen, Jr.

Post Office Box 10616 Tallahassee, Florida 32302

For Respondent: Michael J. Alderman, Esquire

Assistant General Counsel Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504

ISSUES AND BACKGROUND

Petitioner seeks to have the title to a specific motor vehicle cancelled and reissued to himself. The title at issue is currently in the name of John W. Klingerman. The central issue before the Hearing Officer is whether the title at issue was "improperly issued" by the Department so as to require cancellation of the certificate of title pursuant to Section 319.25(1), Florida Statutes.

It was clear from the nature of the relief sought by the Petitioner that the disposition of this case might adversely affect the substantial interests of John W. Klingerman, the person to whom the disputed certificate of title is presently issued. Accordingly, an order was issued requiring that Mr.

Klingerman be notified of the pendency of this case and of his right to file a petition to intervene in this case. Mr. Klingerman was so notified more than two months prior to the final hearing in this case. Mr. Klingerman did not seek to participate in this case.

The only witness at the hearing was the Petitioner. Joint Exhibits 1 and 2 were received in evidence by stipulation of the parties. Petitioner's Exhibits

5 and 10 were received in evidence. Petitioner's Exhibit 9 was received with the caveat that it might later be disregarded by the Hearing Officer if, upon

further consideration of the issues, the Hearing Officer determined it was not relevant. The Hearing Officer reserved ruling on the admission into evidence of Petitioner's Exhibits 8 and 12. Petitioner's Exhibits 1, 2, 3, 4, 6, 7 and 13 were rejected, but Petitioner was permitted to proffer them for inclusion in the record as rejected exhibits. Petitioner's Exhibit 11 was withdrawn by Petitioner. Respondent's Exhibit 1 was received in evidence.

Rulings on Petitioner's Exhibits 8, 9 and 12

Upon consideration of all of the legal issues in this case, as set forth in the Conclusions of Law hereinafter, it is clear that Petitioner's Exhibits 8 and

12 are irrelevant to the disposition of the issues in this case. Accordingly, the objections to those two exhibits are sustained and both exhibits will be treated as rejected exhibits proffered for inclusion in the record. Upon further consideration, it is also clear that Petitioner's Exhibit 9 is irrelevant to the disposition of the issues in this case. Accordingly, even though Exhibit 9 has been received in evidence, no findings of fact have been based on that exhibit.

FINDINGS OF FACT

Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony presented at the hearing, I make the following findings of fact:

1. During November of 1986, Chuck's Whiskey Creek Service embarked upon the process of enforcing a mechanic's lien on Petitioner's 1963 Ford Stationwagon, vehicle identification number 3T24F155323 (hereinafter referred to as "Petitioner's vehicle.") The owner of Chuck's Whiskey Creek Service arranged for the paperwork regarding the mechanic's lien to be handled by an agent, Title Clearing Service. Title Clearing Service is operated by John Boesch and Carol Boesch.

   
   

2. On November 21, 1986, John Boesch mailed a document titled Notice of Claim of Lien And Proposed Sale of Vehicle to Petitioner at two different addresses. The documents were sent via certified mail. Both of the documents were returned to John Boesch because they were not delivered to the Petitioner. The documents mailed on November 21, 1986, contain all of the information itemized at Section 713.585(1)(a) through (i), Florida Statutes.

   
   

3. On December 17, 1986, a notice of sale was published in the Fort Myers News-Press, a newspaper circulated in Lee County, Florida. The notice published in the newspaper read, in its entirety, as follows:

   
   

   LEGAL NOTICE OF SALE

   Chuck's Whiskey Creek Service, 5371 McGreagor Blvd., Fort Myers, Florida 33907 will hold a private sale on the following vehicle to satisfy lien pursuant to Chapter 713:585 of Florida Statue (sic) on January 5, 1987, at 8

   a.m. 1963 Ford SW VIN #3T24F155323 Amount of Lien $2,027.95

   (813) 549-0631

   Dec. 17 No. 5247

   
   

4. Thereafter, on January 5, 1987, a private sale was conducted at which time John W. Klingerman purchased Petitioner's vehicle from Chuck's Whiskey

   Creek Service for $200.00. On January 13, 1987, John W. Klingerman applied to the Respondent for issuance of a certificate of title in his name, based on his purchase at the January 5, 1987, sale. On January 30, 1987, the Respondent issued a certificate of title to Petitioner's vehicle described above to John W. Klingerman of 1824 Coronado Road, Ft. Myers, Florida 323901-7008. Title Number 43916166 issued by the Respondent now shows John W. Klingerman as the owner of the 1963 Ford stationwagon bearing vehicle identification number 3T24F155323.

   
   

5. The issuance of the certificate of title to John W. Klingerman was in reliance upon the application for certificate of title filed by John W. Klingerman and various supporting documents. The supporting documents included a copy of the certificate of compliance and the report of sale certified by the clerk of the court. Other supporting documents certified by the clerk of the court included copies of the Affidavit of Publication, the Notice Of Claim Of Lien And Proposed Sale of Vehicle, the vehicle repair order, and envelopes reflecting efforts to mail notices to the Petitioner.

   
   

6. The Petitioner's vehicle was previously titled in the state of South Carolina.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

   
   

8. The procedures for enforcing a lien for performing labor or services on a motor vehicle include the following at Section 713.585(1) and (2), Florida Statutes:

   
   

   1. The lienor shall give notice to the registered owner of the vehicle, to the customer as indicated on the order for repair, and to all other persons claiming an interest in or lien thereon, as disclosed by the records of the Department of Highway Safety and Motor Vehicles or of a corresponding agency of any other state in which the vehicle appears registered. Such notice must be sent by registered or certified mail at least 45 days before the proposed or scheduled date of any sale and shall contain:

      1. A description of the vehicle and its location.

      2. The name and address of the owner of the vehicle, the customer as indicated on the order for repair, and any person claiming an interest in or lien thereon.

      3. The name, address, and telephone number of the lienor.

      4. Notice that the lienor claims a lien on the vehicle for labor and services performed and storage charges, if any, and the cash sum which, if paid to the lienor,

         would be sufficient to redeem the vehicle from the lien claimed by the lienor.

      5. Notice that the lien claimed by the lienor is subject to enforcement pursuant to this section and that the vehicle may be sold to satisfy the lien.

      6. The date, time, and location of any proposed or scheduled sale of the vehicle and whether such sale shall be private or public. No vehicle may be sold earlier than 60 days after completion of the repair work.

      7. Notice that the owner of the vehicle or any person claiming an interest in or lien thereon has a right to a hearing at any time prior to the scheduled date of sale by filing a demand for hearing with the clerk of the circuit court in the county in which the vehicle is held and mailing copies of the demand for hearing to all other owners and lienors as reflected on the notice.

      8. Notice that the owner of the vehicle has a right to recover possession of the vehicle without instituting judicial proceedings by posting bond in accordance with the provisions of s. 559.917.

      9. Notice that any proceeds from the sale of the vehicle remaining after payment of the amount claimed to be due and owing to the lienor will be deposited with the clerk of the circuit court for disposition upon court order pursuant to subsection (6).

   2. If the owner of the vehicle is unknown or his whereabouts cannot be determined, or if the owner or any person notified as provided in subsection (1) fails to acknowledge receipt of such notice, the lienor, at least 20 days before the proposed or scheduled date of sale of the vehicle, shall publish the notice required by this section once in a newspaper circulated in the county where the vehicle is held. A certificate of compliance with the notification provisions of this section, verified by the lienor, together with a copy of the notice and return receipt for mailing of the notice required by the section, or proof of publication, as the case may be, shall be duly and expeditiously filed with the clerk of the circuit court in the county where the vehicle is held.

      
      

9. And Section 713.585(7), Florida Statutes, provides as follows:

   
   

   (7) A copy of the certificate of compliance and the report of sale, certified by the clerk of the court, shall constitute satisfactory proof for application to the

   Department of Highway Safety and Motor Vehicles for transfer of title, together with any other proof required by any rules and regulations of the department.

   
   

10. Also applicable to the disposition of this case is the following language from Section 319.25(1), Florida Statutes:

    
    

    1. If it appears that a certificate of title has been improperly issued, the department shall cancel the certificate.

       Upon cancellation of any certificate of title, the department shall notify the person to whom the certificate of title was issued, as well as any lienholders appearing thereon, of the cancellation and shall demand the surrender of the certificate of title, but the cancellation shall not affect the validity of any lien noted thereon. The holder of the certificate of title shall return it to the department forthwith. If a certificate of registration has been issued to the holder of a certificate of title so canceled, the department shall immediately cancel the certificate of registration and demand the return of such certificate of registration and license plate or mobile home sticker; and the holder of such certificate of registration and license plate or sticker shall return them to the department forthwith.

       
       

11. In this case the Petitioner never received the notices that were mailed to him. Therefore, there was never any acknowledgement of receipt of notice and, pursuant to Section 713.585(2), Florida Statutes, publication of notice in a newspaper was required. Notice was published in the newspaper, but the newspaper notice was insufficient in two respects. First, the publication was only 19 days before the proposed or scheduled date of the sale of the vehicle. Second, the newspaper notice failed to contain much of the information required by the statute. It is clear from the language of subsection (2) of the statute that newspaper publication pursuant to subsection (2) must include all of the information itemized at paragraphs (a) through (i) of subsection (1) of Section 713.585, Florida Statutes.

    
    

12. The foregoing shortcomings in the publication of newspaper notice are evident on the face of the documents certified by the clerk of the circuit court and relied upon by the Respondent when it issued a certificate of title to John

    W. Klingerman. Where the documents show on their face that the statutory procedures were not complied with, it cannot be doubted that it appears from the face of the documents that a certificate of title has been improperly issued. Accordingly, pursuant to Section 319.25(1), Florida Statutes, the Respondent should cancel the certificate of title issued to John W. Klingerman.

    
    

13. In addition to seeking cancellation of the certificate of title issued to John W. Klingerman, the Petitioner also seeks to have a certificate of title issued to Petitioner. Petitioner's vehicle was previously titled in the state of South Carolina and there is no evidence that the vehicle was ever titled in

Petitioner's name in the State of Florida. There is no evidence one way or the other in this case as to whether Petitioner meets all of the statutory requirements to have a Florida certificate of title issued in his name.

Accordingly, the record is insufficient to show Petitioner's entitlement to have a certificate of title issued in his name. Following the cancellation of the certificate of title issued to John W. Klingerman, the Petitioner may, of course, file an application to have a certificate of title issued in Petitioner's name.

RECOMMENDATION

Based upon all of the foregoing, it is recommended that the Department of Highway Safety and Motor Vehicles issue a final order in this case cancelling certificate of title number 43916166 issued to John W. Klingerman and that the Department thereafter notify John W. Klingerman of the cancellation of the certificate as provided in Section 319.25(1), Florida Statutes.

DONE and ENTERED this 22nd day of October, 1987, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2613

The following are my specific rulings on each of the proposed findings of fact submitted by the parties. The paragraph numbers below correspond to the paragraph numbers of the parties' proposed findings.

Rulings on Petitioners Proposed Findings: Paragraphs 1 and 2: Accepted in substance.

Paragraph 3: Accepted in substance with exception of vehicle

identification number, which is incomplete.

Paragraphs 4 and 5: Rejected as constituting argument or conclusions of law, rather than findings of fact.

Paragraph 6: First sentence rejected as constituting argument or conclusions of law, rather than findings of fact. Second sentence is rejected as contrary to the greater weight of the evidence.

Paragraph 7: First sentence rejected as constituting argument or conclusions of law, rather than findings of fact. Second sentence is accepted in substance, i.e., that publication of the notice was less than 20 days prior to scheduled sale and the newspaper publication contained insufficient information.

Paragraph 8: First two sentences are rejected as constituting argument or conclusions of law, rather than findings of fact. Last sentence is rejected as irrelevant and subordinate details.

Paragraph 9: First two sentences are rejected as constituting argument or conclusions of law, rather than findings of fact. Last two sentences are rejected as contrary to the greater weight of the evidence.

Paragraph 10: Entire paragraph rejected as constituting irrelevant and subordinate details.

Paragraph 11: Entire paragraph rejected as primarily constituting argument or conclusions of law rather than findings of fact. To the limited extent this paragraph contains factual matter, it is rejected as irrelevant and subordinate.

Rulings on Respondent's Proposed Findings: Paragraph 1: Accepted.

Paragraph 2: Accepted with exception of proposed purchase date. Greater

weight of the evidence shows purchase date as January 5, 1987.

Paragraph 3: Accepted in substance, but with most details omitted as irrelevant or subordinate.

Paragraph 4: Rejected as constituting irrelevant and subordinate details. Paragraph 5: Accepted.

Paragraphs 6 and 7: Rejected as constituting irrelevant and subordinate details.

Paragraph 8: First sentence rejected as not fully consistent with the greater weight of the evidence. Second sentence rejected as argument or conclusions of law, rather than findings of fact.

COPIES FURNISHED:

Leonard R. Mellon Executive Director Department of Highway and

Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0500

Enoch Jon Whitney, Esquire General Counsel

Department of Highway and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0500

Mr. Ocie C. Allen, Jr. Post Office Box 10616

Tallahassee, Florida 32302

Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety

and Motor Vehicles Neil Kirkman Building Room A-432

Tallahassee, Florida 32399-0504

Docket for Case No: 87-002613

Orders for Case No: 87-002613