STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, DIVISION OF ) MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5664

)

INRODAR AUTO SALES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 10, 1989, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

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

For Respondent: No Appearance

BACKGROUND

By letter dated October 20, 1988, Respondent, through its President, Javier

1. Rodriquez, was informed that Petitioner intended to revoke Respondent's motor vehicle dealer license because Respondent had closed and abandoned its licensed business location. Respondent thereafter requested a formal hearing on the charges against it. In response to Respondent's request, the instant case was referred to the Division of Administrative Hearings on November 14, 1988, for the assignment of a hearing officer.

   
   

   The case was set to be heard on March 10, 1989. A copy of the notice of hearing was mailed on January 19, 1989, to the address Respondent gave in its written request for hearing. The copy of the notice was returned undelivered. The envelope in which it had been sent reflected that delivery was not accomplished because the addressee had "Moved Left No Address."

   
   

   The hearing was held as scheduled on March 10, 1989. Petitioner appeared at hearing through its attorney. No appearance was made on behalf of Respondent. Petitioner presented the testimony of one witness and offered one exhibit, which was received into evidence. In lieu of filing a proposed recommended order, counsel for Petitioner gave closing argument at hearing.

   FINDINGS OF FACT

   
   

   Based on the evidence adduced at hearing, the undersigned makes the following findings of fact:

   
   

   1. Respondent holds a license issued by Petitioner which permits it to engage in the business of a motor vehicle dealer at 9901 N.W. 80th Avenue, Bay 3C, Hialeah Gardens, Florida.

      
      

   2. On Friday, September 9, 1988, during normal business hours, Karen Reyes, who is employed by Petitioner as a License and Registration Inspector, visited this location to attempt to conduct an annual inspection of Respondent's records. The doors to the warehouse where the business was supposed to be located were closed and locked and no one was around the dealership. Reyes left a note requesting that a representative of the dealership contact her. She

      then-departed.

      
      

   3. Reyes returned to the location on Tuesday, September 20, 1988. Although it was mid-morning, the warehouse doors were closed and locked and there was no one present. Before departing, Reyes left a second note asking that she be contacted by someone from the dealership.

      
      

   4. The following day Reyes attempted to telephone the dealership. No one answered the phone, however, when she called.

      
      

   5. Reyes reported her findings to her supervisor. As a result, on October 20, 1988, Respondent's President, Javier F. Rodriquez, was sent a letter in which he was advised that Petitioner proposed to revoke Respondent's motor vehicle dealer license on the ground that Respondent had closed and abandoned its licensed location. The letter further advised that Respondent had the right to request a formal hearing before any final action was taken against it.

      
      

   6. Rodriquez responded to the letter by requesting a hearing at which he would have the opportunity to present proof that the dealership had not been closed or abandoned. In view of this response, Reyes was instructed by her supervisor to pay another visit to the dealership. She made this visit on Tuesday, November 8, 1988. This time she encountered two men at the location. There were also a couple of cars there as well.

      
      

   7. One of the men, who claimed to be a representative of the dealership, telephoned Rodriquez's wife and had her speak with Reyes. During their telephone conversation, Mrs. Rodriquez informed Reyes that her husband was still active in the automobile sales business, but that he was conducting his business at their home. At the conclusion of their discussion, Reyes asked Mrs. Rodriquez to have her husband call Reyes' office.

      
      

   8. Mr. Rodriquez telephoned Reyes' office on November 16, 1988. Reyes was not in, so Rodriquez left a message. Later, that day, Reyes returned the call, but was unable to reach Rodriquez.

      
      

   9. The following day, Reyes went back to the dealership, where she found the same two men she had met there on November 8, 1988. Rodriquez, however, was not at the dealership. Reyes therefore left. She came back later in the day. This time Mr. Rodriquez was present and he spoke with Reyes. When asked by Reyes why there was no business activity nor records at the licensed business location, Rodriquez responded that the dealership was now open every day from 9:00 a.m. to 4:00 p.m. He provided Reyes with no additional information.

   10. Reyes revisited the dealership on Friday, January 13, 1989, Wednesday, January 18, 1989, Thursday, January 19, 1989, and Monday, January 23, 1989, during normal business hours. On each of these occasions, she found no one at the location and the doors to the warehouse closed and locked. She made another visit on Monday, January 30, 1989. Although it was during normal business hours, there was no indication of any activity at the dealership. Furthermore, the sign which had identified the business had been removed. This prompted Reyes to speak with the leasing agent at the warehouse complex. The leasing agent told Reyes that Respondent was no longer occupying space at the complex.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Legislature has vested Petitioner with the authority to license, and to suspend or revoke the license of, motor vehicle dealers. Section 320.27, Florida Statutes.

       
       

   12. Petitioner is statutorily authorized to revoke a motor vehicle dealer's license if the licensee fails "to continually meet the requirements of the licensure law." Section 320.27(9)(r), Fla. Stat. The licensure law requires a dealer to conduct its business and to maintain its records and files at its licensed business location. Section 320.27(3), Fla. Stat.

       
       

   13. Respondent has failed to do so for at least the last six months. In view of this failure on Respondent's part to continually meet the requirements of the licensure law over the past six months, its motor vehicle dealer license should be revoked pursuant to Section 320.27(9)(r), Florida Statutes. See Templeton v. Department of Highway Safety and Motor Vehicles, 390 So.2d 825 (Fla. 1st DCA 1980) (motor vehicle dealer license may be revoked for failure to conduct business at licensed location).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's motor

vehicle dealer license.

DONE and ORDERED this 27th day of March, 1989, in Tallahassee, Florida.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1989.

COPIES FURNISHED:

Michael J. Alderman, Esquire Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0504

Javier F. Rodriquez, President Inrodar Auto Sales, Inc.

9901 N.W. 80th Avenue, Bay 3C Hialeah Gardens, Florida 33016

Charles J. Brantley, Director Department of Highway Safety

And Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0500

Enoch Jon Whitney, Esquire General Counsel

Department of Highway Safety And Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0500

Docket for Case No: 88-005664

Orders for Case No: 88-005664