STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 90-0175

)

DICK'S AUTO SALES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, J. Stephen Menton, held a hearing in the above- styled case on April 19, 1990, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Assistant General Counsel Department of Highway Safety

and Motor Vehicles

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

For Respondent: Craig R. Wilson, Esquire

Crystal Tree Office Center 1201 U.S. Highway 1, Suite 315

North Palm Beach, Florida 33408-3581 STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent's motor vehicle dealer license should be disciplined as a result of the criminal conviction of the Respondent's president and stock- holder, Richard Borst, for aiding and abetting the interstate transportation of stolen property in violation of 18 U.S.C. Sections 2 and 2314.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 25, 1989, the Petitioner, the Department of Highway Safety and Motor Vehicles, sought to revoke Respondent's motor vehicle dealer license. The Respondent timely requested a hearing on the matter. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.

At the hearing, the Petitioner presented the testimony of Neil C. Chamelin, Operations and Management Consultant Manager for the Division of Motor Vehicles

and Robert N. Overton, Regional Administrator for Region 9 of the Division of Motor Vehicles. The Petitioner offered one exhibit into evidence (the Division of Motor Vehicles' licensure file,) which was accepted without objection.

The Respondent called two witnesses: Richard Borst, president and a stockholder of Respondent Dick's Auto Sales, Inc., and Patricia Borst, wife of Richard Borst.

The Respondent offered three exhibits into evidence, all of which were accepted. Respondent's Exhibit #1 is the face sheet of the Division of Motor Vehicle's investigative report signed by its Regional Administrator, Robert N. Overton; Respondent's Exhibit #2 is a composite consisting of six (6) letters submitted by character witnesses for Richard Borst in the criminal case.

Although these letters were received into evidence as part of the record in the criminal case, none of the authors of the letters were present to testify at the hearing to authenticate or verify the contents of the letters. Respondent's Exhibit #3 is a composite consisting of court documents and correspondence generated during the investigation conducted by the U.S. Department of Justice, Criminal Division, Organized Crime and Racketeering Section, Boston Strike Force.

Prior to the hearing, Petitioner filed a Request For Official Recognition regarding the federal criminal statutes involved, 18 U.S.C. Sections 2, 2314 and 3559. The Respondent also requested official recognition of the judgement entered on June 28, 1989 and filed by the clerk of the United States District Court, Southern District of Florida on June 29, 1989 in United States vs.

Richard Borst, Case No. 89-6032-Cr-PAYNE-(01)(The "Criminal Judgment"). At the beginning of the hearing, the Respondent stipulated that official recognition be taken of both the statutes and the Criminal Judgment. The parties also stipulated that Richard Borst, the president and a stockholder in the Respondent Dick's Auto Sales Inc., is the same Richard Borst named in the Criminal Judgment and that, at all times material hereto, the Respondent, Dick's Auto Sales, Inc., held an independent motor vehicle dealer license, No. 9V1-011476, issued by the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles pursuant to Section 320.27, Florida Statutes.

A transcript of the proceedings was filed with the Division of Administrative Hearings on May 3, 1990. Both parties timely submitted proposed recommended orders in accordance with the schedule agreed upon at the conclusion of the hearing. A ruling on each of the parties' proposed findings of fact is included in the appendix attached to this recommended order.

FINDINGS OF FACT

1. Respondent, Dick's Auto Sales, Inc., is the holder of a motor vehicle dealer license issued by the Petitioner, Department of Highway Safety and Motor Vehicles ("the Department").

   
   

2. Richard R. Borst ("Borst") is the president of Respondent Dick's Auto Sales, Inc., and one of two stockholders in the company.

   
   

3. At all times material hereto, the Respondent maintained a business address at 110 N.W. 18th Avenue, Delray Beach, Florida. Borst also operates an auto parts business at the same address as the motor vehicle dealership.

4. On or about June 9, 1989, Borst appeared before the Honorable James C. Payne, U.S. District Judge for the Southern District of Florida, and entered a plea of guilty to aiding and abetting the transportation of stolen motor vehicle parts in violation of Title 18 U.S.C. Section 2314 & 2 in Case Number 89-6032- Cr-PAYNE-(01), United States v. Richard Borst,. Based on the plea entered and the plea agreement then before the court, Borst was adjudicated guilty in a Criminal Judgment dated June 28, 1989. Imposition of a sentence of confinement was suspended and Borst was placed on probation for a period of three (3) years. Borst was also fined Fifty Dollars ($50.00).

   
   

5. Borst's conviction arose in connection with his purchase of auto parts from a "chop shop" (i.e., an operation which dismantled stolen cars and sold the parts,) in the Connecticut area. The purchase took place in May, 1987. In April, 1988, Borst met with state and federal investigators and agreed to fully cooperate with a task force set up to investigate the operation. He also agreed to testify against the individuals involved. While Borst was in Connecticut waiting to testify, the other defendants entered guilty pleas.

   
   

6. In Respondent's initial dealer license application dated September 24, 1987, Borst stated under oath that he was not facing criminal charges.

   
   

7. On April 27, 1989, Borst, as president of Respondent, signed an application to renew Respondent's license, stating under oath:

   
   

   Under penalty of perjury, I do swear or affirm that the information contained in this application is true and correct and that nothing has occurred since I filed my last application for a license or application for renewal of said license, as the case may be, which would change the answers given in such previous application.

   
   

8. On January 18, 1989, Borst and his attorney signed a "Consent to Transfer of Case for Plea and Sentence", in United States v. Richard Borst, Criminal No. B-89-6-(TFGD), United States District Court for the District of Connecticut (the "Connecticut Case"). This document expressly acknowledges that an Information was pending against Borst in the United States District Court for the District of Connecticut, that Borst wished to plead guilty to the offense charged, and that he consented to the disposition of the case in the Southern District of Florida.

   
   

9. The Information entered in the Connecticut Case, charged Borst with violation of 18 U.S.C. Sections 2314 and 2, for transporting motor vehicle parts in interstate commerce knowing them to have been stolen. The date of this Information was not established, but it was clearly on or before January 18, 1989.

   
   

10. Thus, sometime prior to January 18, 1989, Borst was charged with criminal violations of 18 U.S.C. Sections 2314 and 2, and these charges were pending when Borst signed and filed Respondent's renewal application for 1989.

    
    

11. Petitioner contends that Borst's conviction is directly related to the business of being a motor vehicle dealer, especially since Borst operates a motor vehicle parts business in conjunction with his motor vehicle dealership. However, the evidence presented provided only a very limited factual background regarding the conviction, none of Petitioner's representatives talked with the

    investigators or prosecutors in the criminal case and no evidence was presented regarding the Respondent's role in the transactions leading to Borst's conviction.

    
    

12. At the time of the hearing, Borst was fifty-three (53) years of age. Within the last twenty-four (24) months, he has suffered numerous health problems including a nervous breakdown which necessitated an eighteen (18) week period of confinement to his residence for rest. He currently undergoes twice- weekly therapy with a psychiatrist and has been taking an antidepressant prescription. In addition, in October of 1989, he was admitted to the hospital for a heart condition. Subsequently, a balloon angioplasty was performed on him. He was later re-admitted to the hospital for five (5) days as a result of post surgery complications. He is also an insulin dependent diabetic. He attributes most of these health problems to the stress and turmoil of his criminal conviction.

    
    

13. In light of his emotional and physical condition, he has been required to reduce his work load.

    
    

14. Borst has been actively trying to sell the existing business in order to retire the outstanding indebtedness on the business and the property on which it is located.

    
    

15. There is no evidence that the Respondent and/or any of its duly elected officers or stockholders have ever been subjected to any other complaints and/or investigations by the Department or by any other investigatory or regulatory agency during the past seventeen (17) years since it was originally licensed.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).

    
    

17. The Petitioner has the burden to prove the violations alleged in the Administrative Complaint. It is unclear whether the standard of proof is clear and convincing evidence or simply a preponderance of the evidence. See, Ferris vs. Turlington, 510 So.2d 292 (Fla. 1989). The result in this case is not effected by the standard of proof applied.

    
    

18. Disciplinary action with respect to a state-issued cense is limited to the offenses or facts alleged in the Administrative Complaint. Sternberg vs. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985). In this case, the only basis for disciplinary action alleged in the Administrative Complaint was Richard Borst's criminal conviction. No allegations were included in the Administrative Complaint that Respondent's 1989 license renewal application contained misrepresentations or misstatements. Thus, any such deficiencies in that application cannot serve as a basis for disciplinary action in this proceeding.

    
    

19. The relevant part of 18 U.S.C. Section 2314 provides:

    
    

    Who transports in interstate commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to be stolen, converted or taken by fraud.

    shall be fined not more than $10,000 or imprisoned not more than 10 years, or both.

    
    

20. Pursuant to 18 U.S.C. Section 3559(a)(3), violation of 18 U.S.C. Section 2314 is a felony.

21. Section 320.27(9), Florida Statutes, (1989) provides: DENIAL, SUSPENSION, OR REVOCATION-The

    Department may deny, suspend or revoke any

    license issued here-under ..., upon proof that a licensee has failed to comply with any of the following provisions with sufficient frequency so as to establish a pattern of wrong doing on the part of the licensee:

    * * *

    (q) Conviction of a felony. (emphasis supplied)

    
    

22. The evidence in this case established that Richard Borst, an officer and a stockholder in, Dick's Auto Sales, Inc., has been convicted of a felony by a court of competent jurisdiction. 1/

    
    

23. The record does not indicate that Richard Borst, or any person acting at his direction, has failed to comply with any of the proscribed conduct enumerated in Section 320.27(9), Florida Statutes, "with sufficient frequency so as to establish a pattern of wrongdoing."

    
    

24. While the Department argues that it has discretion to suspend, fine or revoke the license of Respondent in this case, the Department has provided no legal authority for taking such actions when no "pattern of wrongdoing" has been established. The statute must be given its plain and obvious meaning. Holly v. Auld, 450 So.2d 217 (Fla. 1984). Under the clear wording of the statute, the Department's authority to deny, suspend or revoke any license is dependent upon proof of a pattern of wrongdoing on the part of the licensee. While in some instances proof of conviction of certain felonies may be sufficient to establish a pattern of wrongdoing, in this case the only evidence regarding the facts surrounding the conviction indicate Borst engaged in a single purchase of stolen goods. As such, Petitioner has failed to establish a "pattern of wrongdoing" and, therefore, the Petitioner has not proven one of the essential elements for suspending or revoking a license under Section 320.27(9), Florida Statutes (1989).

    
    

25. The Department also contends that it has the authority under Section 320.27(12), Florida Statutes to impose a civil fine of up to $1000.00 for each violation. Section 320.27 (12) provides:

    
    

    CIVIL FINES: PROCEDURES- In addition to the exercise of other powers provided in this section, the Department may levy and collect a civil fine, in an amount not to exceed

    $1000.00 for each violation, against any licensee if it finds that the licensee has violated any provision of this section or has violated any other law of the state related to dealing in motor vehicles.

26. Section 320.27(12) does not specifically incorporate the list of conduct delineated under Subsection (9). 2/ Absent an independent incorporation of each of the individual items of subsection (9), the proper statutory interpretation requires that a violation of Subsection (9) be established (which as discussed above neccesarily requires the establishment of a "pattern of wrongdoing") before the Department has authority to levy a fine. Since no violation of subsection 320.27(9) has been established, the Petitioner does not have authority under Section 320.27(12) to levy a fine.

    
    

27. In support of it contention that Respondent's license should be revoked, Petitioner argues that Borst's conviction is related to the operation of a motor vehicle dealership. Even if Petitioner has authority to take disciplinary action against Respondent's license, there is no statutory or rule authority for Petitioner's contention that a more severe penalty is justified if the felony is related to the operation of the motor vehicle dealership. While an agency has discretion with respect to the penalty to be imposed for an established violation, that discretion must be applied based on the facts of the particular case. The evidence presented in this de novo proceeding provided only a limited factual background of the Borst's criminal conviction. The evidence did establish that the Borst cooperated fully with the investigating authorities and received a minimal sentence. His cooperation in the investigation demonstrates that he is not beyond rehabilitation and, therefore, permanent revocation would be unduly harsh absent further aggravating factors. Permanent revocation of a license to engage in business is a harsh punishment reserved for egregious cases. See, The Florida Bar vs. Davis, 361 So.2d 159 (Fla. 1978).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the Department enter a Final Order which finds Respondent not guilty of the violation alleged in the Administrative Complaint and dismisses the Administrative Complaint.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1990.

ENDNOTES

1/ While the documents in the licensure file are somewhat ambiguous as to whether the license was issued in the name of the Respondent corporation or to Richard Borst, d/b/a Dick's Auto Sales, the parties stipulated prior to the hearing and both parties indicate in their proposed recommended orders that the license is in the name of Dick's Auto Sales. Petitioner has provided no authority for the proposition that conviction of an officer and shareholder of a corporation is adequate grounds for disciplining a license issued in the name of the corporation. The wording of the statute appears to require that the licensee be convicted before disciplinary action can be taken. There is a significant legal question whether disciplinary action can be taken against a license issued to a corporation based solely upon the acts of an officer and shareholder of the corporation without any showing that the corporation itself was involved. However, in view of the conclusions reached herein, that issue need not be resolved in this case.

2/ The structure of this statute should be compared with other statutes where the legislature clearly intended for an agency to be able to levy fines based on conduct delineated in a previous subsection. See e.g., Section 471.033(1)(a) incorporating Section 471.031.

APPENDIX TO RECOMMENDED ORDER

Both parties have submitted Proposed Recommended Orders. The following rulings are directed to the proposed findings of fact contained in those submittals.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

   
   

2. Adopted in substance in Findings of Fact 2.

   
   

3. Adopted in substance in Findings of Fact 4.

   
   

4. Adopted in substance in Findings of Fact 4.

   
   

5. Rejected as constituting legal argument rather than a finding of fact.

   
   

6. Adopted in substance in Findings of Fact 6.

   
   

7. Adopted in substance in Findings of Fact 7.

   
   

8. Adopted in substance in Findings of Fact 8.

   
   

9. Adopted in substance in Findings of Fact 9.

   
   

10. Rejected as irrelevant.

11. The first sentence is adopted in substance in Findings of Fact 10. The second sentence is rejected as contrary to the weight of the evidence. While Mr. Borst may not have accurately filled out his renewal form, the Hearing Officer finds that his testimony was otherwise credible.

    
    

12. Rejected as argument rather than a finding of fact.

    
    

13. Adopted in substance in Findings of Fact 2.

    
    

14. Rejected as unsubstantiated by the evidence. While Mr. Borst's conviction was related to the transportation of stolen motor vehicle parts, the evidence did not establish how those parts were utilized in Respondent's business and/or the role Respondent played in the criminal scheme.

    
    

15. Rejected as constituting argument.

    
    

    The Respondent's Proposed Findings of Fact

    
    

    Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

    Reason for Rejection.

    
    

    1. Included in the preliminary statement and also adopted in substance in Findings of Fact 4.

       
       

    2. Included in the preliminary statement and also adopted in substance in Findings of Fact 1.

COPIES FURNISHED:

Charles J. Brantley, Director Division of Motor Vehicles

Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500

Enoch Jon Whitney General Counsel

Division of Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0500

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

and Motor Vehicles

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

Craig R. Wilson, Esquire Crystal Tree Office Center 1201 U.S. Highway 1, Suite 315

North Palm Beach, Florida 33408-3581

=================================================================

AGENCY FINAL ORDERS

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

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

Petitioner CASE NO.: 90-0175

vs.

DICK'S AUTO SALES, INC.,

Respondent.

/

FINAL ORDER

This matter is before the Department pursuant to s. 120.57(1)(b) 10, Fla. Stats., for the purpose of considering the Hearing Officer's Recommended Order, Petitioner's Exceptions To Recommended Order and Respondent's Exceptions To Recommended Order, copies of which are attached hereto as Exhibits A, B and C respectively. Authority to enter this Final Order is pursuant to the delegation to the Executive Director, Rule 15-1.012 FAC, and his designation of the undersigned.

Upon review of the Recommended Order, the Exceptions, and after a review of the complete record in this case, the Department makes the following findings and conclusions:

RULINGS ON EXCEPTIONS

1. Petitioner's Exceptions -

   
   

   1. The Department accepts Petitioner's exceptions to Conclusions of Law 8 through 12 of the Recommended Order for the reasons stated in the written exception.

      
      

   2. The Department accepts Petitioner's exception to footnote 1 to Conclusion of Law number 7 for the reasons set forth in the written exception*

      
      

2. Respondent's Exceptions -

The Department rejects Respondent's exceptions to paragraphs 9 and 10 of the Findings of Fact. Those findings are based on competent substantial evidence in the record. Specifically, there was an Information filed on or before January 18, 1989, against Richard Borst. See Respondent's Exhibit 3 and pages 71 and 76 of the transcript of hearing.

FINDINGS OF FACT

1. The Findings of Fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact of the Department.

CONCLUSIONS OF LAW

1. The Department has jurisdiction of this matter pursuant to ss. 120.57(1) and 320.27, Fla. Stats.

   
   

2. Paragraphs 1-7 of the Conclusions of Law set forth in the Recommended Order are approved, adopted and incorporated herein, with the exception of footnote 1 to paragraph 7. The Department modifies footnote 1 to conclude that disciplinary action can be taken against a corporate licensee based upon the acts of an officer and shareholder under the facts of this case. Here, Richard Borst was both President and one of only two stockholders in Dick's Auto Sales, Inc. Furthermore, his criminal conviction arose in connection with his purchase of auto parts from a "chop shop", which is directly related to the corporate licensee's business of dealing in used motor vehicles. Sections 320.27(3), 320.27(9) and 320.605, Fla. Stats. See also State v. Shouse, 177 So.2d 724 (Fla. 2d DCA, 1965) regarding corporate criminal liability.

   
   

3. The Department further concludes that Respondent has committed a violation of s. 322.27 (9)(g), Fla. Stats., by virtue of the June 9, 1989, felony conviction of its Chief Officer and Co-Stockholder, Richard Borst. This is a serious offense involving transportation in interstate commerce from the State of Connecticut to the State of Florida of motor vehicle parts of the value of $5,000.00. When the applicable provisions of Chapter 322 are read in pari materia, it is evident that the legislature authorized the Department to deny, suspend or revoke a license based upon one felony conviction under the circumstances presented by this case. See ss. 322.27(9)(s), 9(q), (3) and

320.605, Fla. Stats. See also Natelson v. Department of Insurance, 454 So.2d 31 (Fla 1st DCA, 1984), which held,

"Agencies are afforded wide discretion in the interpretation of a statute which it administers and will not be overturned on appeal unless clearly erroneous. (citations omitted) The reviewing court will defer to any interpretation within the range of possible (e.s.) interpretation. (citations omitted)" See also

s. 112.011 Fla. Stats.

PENALTY

Based upon the foregoing findings of fact and conclusions of law it is hereby ORDERED and ADJUDGED that:

1. Respondent is guilty of a violation of s. 322.27(9)(q), Fla. Stats.

   
   

2. Respondent's motor vehicle dealer license is hereby revoked. This penalty is appropriate based upon a review of the complete record and the following reasons:

   
   

   1. The seriousness of the offense as it relates the business of operating a motor vehicle dealership in the context of s. 320.605, Fla. Stats.

      
      

   2. The rejection of recommended Conclusions of Law 8 through 12 add modification of footnote 1 to Conclusion of Law number 7.

      
      

   3. The recognition that upon a showing of good cause and proof of rehabilitation and compliance with s. 320.27(3), Fla. Stats., Respondent is entitled to seek reinstatement of its license. Section 320.273, Fla. Stats.

Done and Ordered this 29 day of August, 1990, in Tallahassee, Leon County, Florida.

CHARLES J. BRANTLEY, Director

Division of Motor Vehicles Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399

Filed with the Clerk of the Division of Motor Vehicles this

29 day of August, 1990.

Copies furnished to:

Craig R. Wilson, Esquire Crystal Tree Office Center 1201 U.S. Highway 1, Suite 315

North Palm Beach, Florida 33408-3581

Judson M. Chapman Assistant General Counsel

Department of Highway Safety and Motor Vehicles

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

J. Stephen Menton Hearing Officer

Division of Administrative Hearings DeSoto Building, 1230 Apalachee Parkway Tallahassee, Florida, 32399-1550

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

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

Petitioner, CASE NO.: 90-0175 vs.

DICK'S AUTO SALES, INC.,

Respondent.

/

AMENDED FINAL ORDER

This matter is before the Department pursuant to s. 120.57(1)(b) 10, Fla. Stats., for the purpose of considering the Hearing Officer's Recommended Order, Petitioner's Exceptions To Recommended Order and Respondent's Exceptions To Recommended Order, copies of which are attached hereto as Exhibits A, B and C respectively. Authority to enter this Final Order is pursuant to the delegation to the Executive Director, Rule 15-1.012 FAC, and his designation of the undersigned.

Upon review of the Recommended Order, the Exceptions, and after a review of the complete record in this case, the Department makes the following findings and conclusions:

RULINGS ON EXCEPTIONS

1. Petitioner's Exceptions -

   
   

   1. The Department accepts Petitioner's exceptions to Conclusions of Law 8 through 12 of the Recommended Order for the reasons stated in the written exception.

   2. The Department accepts Petitioner's exception to

      
      

      footnote 1 to Conclusion of Law number 7 for the reasons set forth in the written exception.

      
      

2. Respondent's Exceptions -

The Department rejects Respondent's exceptions to paragraphs 9 and 10 of the Findings of Fact. Those findings are based on competent substantial evidence in the record. Specifically, there was an Information filed on or before January 18, 1989, against Richard Borst. See Respondent's Exhibit 3 and pages 71 and 76 of the transcript of hearing.

FINDINGS OF FACT

1. The Findings of Fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact of the Department.

CONCLUSIONS OF LAW

1. The Department has jurisdiction of this matter pursuant to 55. 120.57(1) and 320.27, Fla. Stats.

   
   

2. Paragraphs 1-7 of the Conclusions of Law set forth in the Recommended Order are approved, adopted and incorporated herein, with the exception of footnote 1 to paragraph 7. The Department modifies footnote 1 to conclude that disciplinary action can be taken against a corporate licensee based upon the acts of an officer and shareholder under the facts of this case. Here, Richard Borst was both President and one of only two stockholders in Dick's Auto Sales, Inc. Furthermore, his criminal conviction arose in connection with his purchase of auto parts from a "chop shop", which is directly related to the corporate licensee's business of dealing in used motor vehicles. Sections 320.27(3), 320.27(9) and 320.605, Fla. Stats. See also State v. Shouse, 177 So.2d 724 (Fla. 2d DCA, 1965) regarding corporate criminal liability.

   
   

3. The Department further concludes that Respondent has committed a violation of s. 322.27 (9)(q), Fla. Stats., by virtue of the June 9, 1989, felony conviction of its Chief Officer and Co-Stockholder, Richard Borst.

This is a serious offense involving transportation in interstate commerce from the State of Connecticut to the State of Florida of motor vehicle parts of the value of $5,000.00. When the applicable provisions of Chapter 322 are read in pari materia, it is evident that the legislature authorized the Department to deny, suspend or revoke a license based upon one felony conviction under the circumstances presented by this case. See ss. 322.27(9)(s), 9(q), (3) and 320.605, Fla. Stats. See also Natelson v. Department of Insurance, 454 So.2d 31 (Fla 1st DCA, 1984), which held,

"Agencies are afforded wide discretion in the interpretation of a statute which it administers and will not be overturned on appeal unless clearly erroneous. (citations omitted) The reviewing court will defer to any interpretation

within the range of possible (e.s.) interpretation. (citations omitted)" See also

s. 112.011 Fla. Stats.

PENALTY

Based upon the foregoing findings of fact and conclusions of law it is hereby ORDERED and ADJUDGED that:

1. Respondent is guilty of a violation of s. 322.27(9)(q), Fla. Stats.

   
   

2. Respondent's motor vehicle dealer license is hereby revoked. This penalty is appropriate based upon a review of the complete record and the following reasons:

   
   

   1. The seriousness of the offense as it relates the business of operating a motor vehicle dealership in the context of s. 320.605, F1a. Stats.

      
      

   2. The rejection of recommended Conclusions of Law 8 through 12 and modification of footnote 1 to Conclusion of Law number 7.

      
      

   3. The recognition that upon a showing of good cause and proof of rehabilitation and compliance with s. 320.27(3), Fla. Stats., Respondent is entitled to seek reinstatement of its license. Section 320.273, Fla. Stats.

Done and Ordered this 13 day of September, 1990, in Tallahassee, Leon County, Florida.

CHARLES J. BRANTLEY, Director

Division of Motor Vehicles Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399

Filed with the Clerk of the Division of Motor Vehicles this

13 day of September, 1990.

NOTICE OF APPEAL RIGHTS

Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rule 9.110, Rules of Appellate Procedure.

Copies furnished to:

Craig R. Wilson, Esquire Crystal Tree Office Center 1201 U.S. Highway 1, Suite 315

North Palm Beach, Florida 33408-3581

Michael J. Alderman Assistant General Counsel Department of Highway Safety

and Motor Vehicles

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

J. Stephen Menton Hearing Officer

Division of Administrative Hearings DeSoto Building, 1230 Apalachee Parkway Tallahassee, Florida 32399-1550

Docket for Case No: 90-000175

Orders for Case No: 90-000175