STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3555

)

D & S MOTORS, DAVID R. )

BLEVINS, OWNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on September 2, 1992, in Pensacola, Florida.

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Department of State Division of Licensing The Capitol, MS-4

Tallahassee, Florida 32399-0250 For Respondent: David R. Blevins, pro se

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Respondent, D & S Motors and David R. Blevins, Owner, engaged in the business of operating a recovery agency without appropriate licensure and whether the Respondent employed a person engaged in the repossession business without that employed person being appropriately licensed, pursuant to the pertinent provisions of Chapter 493, Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the initiating of an investigation and filing of a complaint against the above-named Respondent in which it was alleged that the Respondent conducted the business of a recovery agency without a valid Class "R" recovery agency license. It is also alleged that the Respondent violated Section 493.6118(1)(n), Florida Statutes, by employing an unlicensed recovery agent.

The cause came on for hearing as noticed. The Petitioner introduced eight exhibits into evidence and adduced the testimony of witnesses, Daniel F. Lee, Jr., Keith Prine, Jerry Jackson, and Michael Matthews. The Respondent presented his own testimony and submitted two exhibits into evidence.

Upon conclusion of the hearing, the Petitioner had the proceedings transcribed and presented a Proposed Recommended Order containing proposed findings of fact and conclusions of law. The Respondent presented a letter in support of the Respondent's position which, in essence, consists of argument based upon the Respondent's view of the testimony and evidence adduced. It does not contain separately-stated proposed findings of fact upon which specific rulings can be made. Specific rulings on the Petitioner's proposed findings of fact are contained in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The subject matter of the dispute at issue arose when Daniel F. Lee, Jr. and the Respondent, David R. Blevins, the owner of D & S Motors, entered into an arrangement whereby Mr. Lee worked for Mr. Blevins in his used car sales business; obtaining cars for sale to customers, repairing and otherwise preparing such cars for sale, and selling cars for the Respondent's dealership. Apparently Mr. Lee believed, at least initially, that he had entered into a partnership arrangement with the Respondent to operate D & S Motors. Mr. Lee, however, was paid like an employee during the course of their business relationship and considered himself to be working for Mr. Blevins. Their arrangement was an employer/employee relationship based upon the preponderance of the evidence.

   
   

2. Mr. Lee's duties included buying and selling cars, preparing them for sale, and driving the company tow truck. He also engaged in attendance at auctions at which cars were sold or others were purchased for resale. Mr. Lee also performed physical repossessions of automobiles between April and December of 1991.

   
   

3. D & S Motors did five or six repossessions for Commercial Credit of Pensacola and would normally charge $125.00 per automobile repossession. Mr. Blevins was aware that Mr. Lee was repossessing automobiles with his company's tow truck because he would give Mr. Lee telephone messages from Commercial Credit of Pensacola when a repossession needed to be done, dispatching Mr. Lee to perform that task. After being paid by Commercial Credit with checks made payable to D & S Motors, Mr. Lee would normally give custody of such checks to Mr. Blevins, who would then split the funds they represented three ways. One third of the funds went to Mr. Blevins' company, one third was paid to Mr. Lee, and one third was applied toward maintenance of the tow truck. On three or four occasions, Mr. Blevins actually rode with Mr. Lee in the tow truck performing repossession attempts. On these occasions, they made only one successful recovery of a vehicle, however.

   
   

4. The repossessed vehicles were normally kept at the D & S Motors' dealership lot, and Mr. Blevins sometimes would help perform the inventory of the personal property in the vehicles.

   
   

5. On July 31, 1991, Commercial Credit of Pensacola issued a check for

   $275.00 payable to D & S Motors for the repossession of three vehicles. On August 30, 1991, Commercial Credit of Pensacola issued a check for $100.00 made payable to D & S Motors for one repossession.

   
   

6. On December 10, 1991, Commercial Credit of Pensacola issued a check for

   $125.00 made payable to Danny Lee for one repossession. Keith Prine, the Branch Manager for Commercial Credit of Pensacola, was given a D & S Motors' invoice or

   receipt signed by Mr. Lee. In January of 1992, Mr. Blevins wrote Commercial Credit of Pensacola concerning a wrecked 1986 Saab automobile, which was then being stored at the D & S Motors' dealership lot. That automobile had been repossessed by Mr. Lee, and Mr. Blevins was aware that Mr. Lee had repossessed that vehicle, at least upon the occasion of its being deposited on the D & S Motors' dealership lot.

   
   

7. During the times in question, between April and December of 1991, neither Mr. Blevins nor Mr. Lee held a Class "E" recovery agent license, nor a Class "EE" recovery agent intern license, nor a Class "R" recovery agency license, pursuant to Chapter 493, Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 493.6121, Florida Statutes, accords the Petitioner jurisdiction over the licensure and regulation of recovery agencies and recovery agents for purposes of the facts alleged and proven in this proceeding.

   
   

10. The Respondent has been established to be in violation of Section 493.6118(1)(g), Florida Statutes, and Rule 1C-3.122(1), Florida Administrative Code, by its conduct of the business of a recovery agency without a valid Class "R" recovery agency license. Both Mr. Blevins and Mr. Lee considered their business relationship actually to be one of employer and employee, and the evidence adduced in this record, which was uncontradicted, establishes their relationship to have been that of employer and employee. It was established that the employer, Mr. Blevins, was well aware that D & S Motors was being paid by Commercial Credit of Pensacola for cars repossessed by his employee, Mr. Lee. The Respondent, thus, has also violated Section 493.6118(1)(n), Florida Statutes, for the Respondent's employ of an unlicensed recovery agent, Mr. Lee, as shown by the preponderant evidence of record and the above Findings of Fact. After December 10, 1991, both Mr. Blevins and D & S Motors ceased any involvement in the repossession of vehicles.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that a Final Order be entered finding the Respondent in violation of the statutory and rule provisions cited above and that an administrative fine in the amount of $500.00 be imposed in accordance with Rule 1C-3.113(1)(a)2, Florida Administrative Code, and, as to Count II of the Administrative Complaint, that the Respondent be assessed an administrative fine in the amount of $250.00, in accordance with Rule 1C-3.113(1)(a)9, Florida Administrative Code.

DONE AND ENTERED this 18th day of December, 1992, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 18th day of December, 1992.

APPENDIX TO RECOMMENDED ORDER CASE NO. 92-3555

Petitioner's Proposed Findings of Fact 1-10. Accepted.

COPIES FURNISHED:

The Honorable Jim Smith Secretary of State

The Capitol

Tallahassee, FL 32399-0250

Phyllis Slater, Esq. General Counsel Department of State The Capitol, PL-02

Tallahassee, FL 32399-0250

Henri C. Cawthon, Esquire Department of State Division of Licensing

The Capitol, MS-4

Tallahassee, Florida 32399-0250

Mr. David R. Blevins D & S Motors

6559 N. Old Palafox Pensacola, FL 32514

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE AGENCY WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE AGENCY CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 92-003555

Orders for Case No: 92-003555