STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5655

)

RICHARD VEE COLLIER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 29, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Division of Licensing The Capitol, M.S. #4

Tallahassee, FL 32399-0250 For Respondent: No appearance

STATEMENT OF THE ISSUES

The issue is whether respondent should have an administrative fine levied against him for allegedly performing repossesions without a Class "E" repossessor license.

PRELIMINARY STATEMENT

In an administrative complaint filed on August 13, 1990, petitioner, Department of State, Division of Licensing, charged that respondent, Richard Vee Collier, had violated Subsections 493.304(b) and 493.319(1)(g), Florida Statutes (1989) by performing repossessions without a Class "E" repossessor license. The compaint further alleged that the illicit conduct occurred on or about May 15, 1990, in Charlotte County, Florida. Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred by petitioner to the Division of Administrative Hearings on September 6, 1990, with a request that a hearing officer be assigned to conduct a formal hearing. After neither party responded to the initial order entered in this matter, venue was changed to Tallahassee, Florida and a final hearing scheduled on November 29, 1990.

At final hearing petitioner presented the deposition testimony of Arthur D. Morgan, the manager of a used car dealership in Charlotte Harbor, Florida, and Terry Harbes, a Charlotte County deputy sheriff. Also, petitioner offered

petitioner's exhibits 1-3. All exhibits were received in evidence. Finally, the undersigned took official notice of Chapter 90-364, Laws of Florida, which amended certain portions of Chapter 493, Florida Statutes. Respondent did not appear.

There is no transcript of hearing. Petitioner waived its right to file proposed findings of fact and conclusion of law.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. On May 15, 1990, Charlotte County deputy sheriff Terry Harbes was dispatched to Maple Leaf Estates in response to a "domestic call". Upon arriving at the subdivision, deputy Harbes found a white male, George Guy, lying on the ground in an incoherent state and bleeding from the face. Guy had been assaulted by respondent, Richard Vee Collier. According to Collier's admission at the scene of the incident, Collier was in the process of repossessing Guy's step van when the assault occurred. Collier further acknowleged that he did not hold a repossessor license issued by petitioner, Department of State, Division of Licensing (Division). This latter admission was confirmed by Division records which show that Collier does not hold a repossessor license, a prerequisite to engaging in the trade of repossessing motor vehicles.

   
   

2. Testimony of Arthur D. Morgan, former manager of Time Motor Sales in Charlotte Harbor, Florida, established that Collier worked as an independent contractor for Time Motor Sales during the period from March 23, 1990, through May 15, 1990. During that time period, Collier repossessed nine motor vehicles and was paid fifty dollars per vehicle for his services. It may be reasonably inferred from the evidence that such repossessions occurred as a result of the owners' default in payment for such motor vehicles to the lienholder.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

   
   

4. Since respondent is unlicensed and is subject only to an administrative fine, petitioner bears the burden of proving by the preponderance of the evidence that the allegations in the complaint are true. Cf. Dileo v. School Board of Dade County, 15 FLW D2781 (Fla. 3d DCA, November 13, 1990)(required quantum of proof in a teacher discharge proceeding is a preponderance of the evidence)

   
   

5. Respondent is charged with having "performed repossessions without a Class `E' Repossessor License in violation of Section 493.304(6), Florida Statutes." That subsection provides that "any person who performs the services of a repossessor must have a Class `E' license." The complaint further alleges

   this conduct constitutes a violation of Section 493.319(1)(g), Florida Statutes (1989). That subsection makes "conducting business without a license" a ground for disciplinary action. Finally, Subsection 493.30(6) defines a repossessor as

   
   

   any person who, for compensation, recovers motor vehicles, as defined in s. 320.01(1), as a result of default of payment for

   such motor vehicle.

   
   

6. By a preponderance of the evidence petitioner has established that respondent performed the services of a repossessor without having the required Class "E" license. Therefore, the charges have been sustained.

   
   

7. Through its counsel, petitioner has recommended that a $1,000 civil penalty be imposed upon respondent. This fine is within the range of penalties authorized by Subsection 493.319(2), Florida Statutes (1989) and is deemed to be appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection

493.319(1)(g), Florida Statutes (1989), and that he pay a $1,000 administrative

fine within such a time period as is specified in the final order rendered in this matter.

DONE and ENTERED this 29th day of November, 1990, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1990.

COPIES FURNISHED:

Henri C. Cawthon, Esquire Division of Licensing

The Capitol, M.S. 4 Tallahassee, FL 32399-0250

Mr. Richard Vee Collier 2204 Alton Road

Port Charlotte, FL 33952

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005655

Orders for Case No: 90-005655