STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6817

)

LORENZO REDDICK, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on February 14, 1994, in Tallahassee, Florida. As pre-arranged, counsel for Respondent and Respondent's witness participated by conference telephone.

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building, Room A432 Tallahassee, Florida 32399-0504

For Respondent: James R. Cunningham, Esquire

200 East Robinson, Suite 1220 Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issue for disposition in this proceeding is whether Respondent's motor vehicle dealer license should be revoked for his prior conviction of a felony, as proposed in an administrative complaint dated October 26, 1993.

PRELIMINARY STATEMENT

Respondent timely requested a formal hearing on the allegations of the administrative complaint, and the case was referred to the Division of Administrative Hearings.

With the agreement of the parties, counsel for Respondent and Respondent's witness participated in the hearing by telephone from Orlando, Florida.

Petitioner presented a single witness, Neil C. Chamelin, and a single exhibit, a certified copy of Judgment in a criminal case from the U.S. District Court for the Middle District of Florida, case #92-104 Cr-Orl-19. This exhibit was received in evidence as Petitioner's exhibit #1, over Respondent's objection based on relevance.

Respondent presented the testimony of Evelyn Reddick, his mother, and no exhibits.

The transcript was prepared and was filed after the hearing. On March 10, 1994, Petitioner filed its proposed recommended order with proposed findings of fact in seven numbered paragraphs. Those proposed findings are adopted here, with the exception of proposed finding #5, which is rejected as unsupported by competent evidence.

FINDINGS OF FACT

1. It is uncontroverted that Respondent Lorenzo Reddick, Jr. (Reddick) holds an independent motor vehicle dealer license, issued by the Department of Highway Safety and Motor Vehicles (DHSMV). The complaint fails to allege, and there is no evidence of, when the license was issued. The licensed place of business is 3214 Orange Center Boulevard, #C, Orlando, Florida.

   
   

2. On April 27, 1993, Reddick pleaded, and was adjudged guilty of a single count offense in a multi-count superseding indictment, in U.S.A. v. Lorenzo Reddick, Case #92-104 Cr-Orl-19, in the U.S. District Court for the Middle District of Florida. The offense, as described in the Judgment, was "Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity", on 12/30/91, pursuant to title 18 U.S. Code, section 1957(a), and title 18 U.S. Code, Section 2. (Petitioner's exhibit #1)

   
   

3. Reddick was sentenced to twenty-four months imprisonment, commencing May 21, 1993, with two years supervision after release. According to the court documents comprising Petitioner's exhibit #1, the sentence was less than provided in sentencing guidelines "upon motion of the government, as a result of defendant's substantial assistance." Reddick is currently serving his prison term.

   
   

4. At the time of the offense Reddick was not operating nor was he licensed as a motor vehicle dealer. There is no evidence of whether his license was obtained before or after his conviction. There is no evidence whatsoever of the offense other than what is found on the face of the judgment, as reflected above.

   
   

5. DHSMV learned of Reddick's conviction in the process of investigating a filed complaint related to failure to transfer title and registration of a vehicle purchased from Reddick's dealership. Neil Chamelin was the manager of DHSMV's dealer license and consumer complaint programs and was responsible for evaluating requests for administrative action and preparing administrative pleadings for the division director. Chamelin received a copy of Reddick's Judgment of Conviction and Sentence and based the administrative complaint on those documents only. Chamelin has no independent knowledge of the offense.

   
   

6. DHSMV has a longstanding policy that a single felony conviction may be sufficient for the agency to take action against a dealer's license. That is, the agency has interpreted the language of the relevant statute to mean that a licensee does not automatically get one free felony before his dealer's license

   is jeopardized, even after the language was amended seven or eight years ago to include a requirement of sufficient frequency of violations as to establish a pattern of wrongdoing.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to section 120.57(1), F.S.

   
   

8. DHSMV has the burden on proving the violations alleged in its administrative complaint against Reddick. Ferris v. Turlington, 510 So.2d 292 (Fla. 1989) Whether the standard of proof is "clear and convincing" as described in Ferris for professional license discipline cases, or simply "preponderance of evidence", is immaterial to the outcome of this proceeding.

   
   

9. The statutory basis for the agency's action against Reddick is this provision:

   
   

   (9) DENIAL, SUSPENSION, OR REVOCATION. - The department may deny, suspend, or revoke any license issued hereunder or under the provisions of s. 320.77, 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 wrongdoing on the part of the licensee:

   . . .

   (q) Conviction of a felony.

   . . .

   (emphasis added)

   
   

10. Reddick argues that a single conviction is insufficient to establish a pattern of wrongdoing; DHSMV contends that the legislature did not intend to allow "one free felony" to a licensee. DHSMV cites this language to support its interpretation of legislative intent:

    
    

    (s) When a motor vehicle dealer is convicted of a crime which results in his being prohibited from continuing in that capacity, the dealer may not continue in any capacity within the industry. The offender shall have no financial interest, management, sales, or other role in the operation of a dealership. Further, he may not derive income from the dealership beyond reasonable compensation for his ownership interest in the business. Section 320.27(9), F.S. (emphasis added)

    
    

11. Whether the licensee committed one, or more than one felony, is not the proper inquiry in determining whether license discipline is appropriate. Based on the circumstances surrounding a single conviction, it is entirely conceivable that the single conviction would be "sufficient frequency so as to establish a pattern of wrongdoing." In other words, the statute seeks punishment for conduct which evinces a propensity for wrongdoing, and under differing circumstances, isolated acts may or may not manifest such danger to consumers or to the public health, safety and welfare of citizens of the state to warrant denial, suspension or revocation of a license. As it is penal in

    nature, section 320.27(9), F.S. must be strictly construed in favor of the licensee. Breesmen v. Department of Professional Regulation, 567 So.2d 369, 471 (Fla. 1st DCA 1990).

    
    

12. The flaw in the agency's proof is that nothing is known of the circumstances of Reddick's conviction. The agency proved the fact of conviction and nothing more. It did not prove that his conviction established a "pattern of wrongdoing". It did not prove, for example, that the conviction had anything to do with the business of dealing in motor vehicles, a factor the agency considered material in Department of Highway Safety and Motor Vehicles v. Dick's Auto Sales, Inc., DOAH #90-0175 (Final order entered 8/29/90 and 9/13/90). In Dick's Auto Sales, DHSMV rejected the Hearing Officer's conclusion that one conviction was not enough, and revoked the license, in part because of the "seriousness of the offense as it relates to the business of operating a motor vehicle dealership in the context of section 320.605, F.S." The licensee in Dick's Auto Sales was convicted of purchasing auto parts from a "chop shop" (an operation which dismantled stolen autos and sold the parts).

    
    

13. A glance at the federal criminal code does not provide any better insight into the nature of Reddick's conviction. A cursory look at the annotations to 18 U.S.C. 1957(a) and 18 U.S.C. 2 reveals a virtually limitless array of activities countenanced by the proscriptions of those sections.

    
    

14. There is no evidence that Reddick was not licensed at the time of his conviction; we know only that his offense was committed prior to licensure. If Reddick had proven that he was licensed after conviction, then he would have had an affirmative defense. Unless he obtained his license by fraud or misrepresentation (offenses not alleged here), Reddick may not be disciplined for conduct (the conviction) committed prior to licensure. Farzad v. Department of Professional Regulation, 443 So.2d 373 (Fla. 1st DCA 1983).

    
    

15. Although it would be easy to succumb to the agency's appeal that Reddick should not remain licensed since he is in prison, the statutory scheme described in Chapter 320, F.S. and more specifically, section 320.27(9), F.S., simply does not support that resolution. Mere conviction of any felony, and nothing more, is not the basis for discipline of a motor vehicle dealer's income.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

that the Department of Highway Safety and Motor Vehicles enter its Final Order dismissing the Administrative Complaint that is the subject of this proceeding.

DONE AND RECOMMENDED this 17th day of May, 1994, in Tallahassee, Leon County, Florida.

MARY CLARK

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 17th day of May, 1994.

COPIES FURNISHED:

Michael J. Alderman Assistant General Counsel

Department of Highway Safety & Motor Vehicles Neil Kirkman Building, Room A432

Tallahassee, Florida 32399-0504

James R. Cunningham, Esquire

200 East Robinson, Suite 1220 Orlando, Florida 32801

Charles J. Brantley, Director Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Room B439

Tallahassee, Florida 32399-0500

Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0500

NOTICE OF RIGHT TO SUBMIT 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. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency 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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,

Petitioner,

vs. DOAH CASE NO.: 93-6817

HSMV-94-0615-S-DMV

LORENZO REDDICK, JR.,

Respondent.

/

FINAL ORDER

This matter came before the Department for entry of a Final Order pursuant to ss. 120.57(1)(b)10., 120.59 and 320.642, Florida Statutes, upon submission of a Recommended Order by Mary Clark, a Hearing Officer of the Division of Administrative Hearings and Exceptions filed by Petitioner.

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

FINDINGS OF FACT

1. The Findings of Fact set forth in the Recommended Order of May 17, 1994, are approved, adopted and incorporated herein. A copy of the Recommended Order is attached to this Order.

   
   

2. There is competent substantial evidence to support the Findings of Fact of the Department.

CONCLUSIONS OF LAW

The Department rejects the Conclusions of Law in the Recommended Order and adopts in their place the Conclusion of Law set forth in Petitioner's Exceptions, which are incorporated by reference in this Final Order. A copy of the Petitioner's Exceptions is attached to this Order.

2. In addition, the Department relies on the provisions of s. 112.011(1)(b), Florida Statutes, which disqualifies a person from holding a business license based on a criminal conviction where civil rights have not been restored or, if restored, the conviction is a felony or first degree misdemeanor and directly related to the licensed business.

DETERMINATION

Based upon the foregoing it is, Ordered and Adjudged that the independent motor vehicle dealer license held by Lorenzo Reddick, Jr., is revoked.

DONE and ORDERED this 3rd day of August, 1994, 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 3rd day of August, 1994.

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:

JAMES R. CUNNINGHAM, ESQUIRE

200 EAST ROBINSON, SUITE 1220 ORLANDO, FLORIDA 32801

MICHAEL J. ALDERMAN, ESQUIRE ASSISTANT GENERAL COUNSEL DEPARTMENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES

NEIL KIRKMAN BUILDING, ROOM A-432 TALLAHASSEE, FLORIDA 32399-0504

MARY CLARK, HEARING OFFICER DIVISION OF ADMINISTRATIVE HEARINGS THE DESOTO BUILDING

1230 APALACHEE PARKWAY

TALLAHASSEE, FLORIDA 32399-1550

T. N. PRAKASH

DEALER LICENSE ADMINISTRATOR

FLORIDA ADMINISTRATIVE LAW REPORTS POST OFFICE BOX 385

GAINESVILLE, FLORIDA 32602

Attachment to Agency Final Order STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES CASE NO. DMV-94FY-87

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,

Petitioner,

vs. DOAH CASE NO.: 93-6817

LORENZO REDDICK, JR.,

Respondent.

/

EXCEPTIONS TO RECOMMENDED ORDER

COMES NOW the Department of Highway Safety and Motor Vehicles and excepts to the Conclusions of Law set forth in the Recommended Order in that the Hearing Officer has misconstrued section 320.27(9)(q), F.S. The Hearing Officer concluded that the Department may not revoke a motor vehicle dealer license upon conviction of a felony unless the felony conviction shows a pattern of wrongdoing on the part of the dealer. The Department respectfully requests that the following Conclusions of Law be Substituted for the conclusions set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Respondent was convicted of a felony as that term is used in the Florida Statutes. Article X, Sec. 10, Florida Constitution; section 775.08(1), Florida Statutes; section 896.101, Florida Statutes. Section 320.27(9)(q) authorizes the Department to revoke or suspend a motor vehicle dealer license for conviction of a felony. The Respondent contends that the wording of the opening paragraph of section 320.27(9) will not allow a license to be disciplined for a single felony. Section 320.27(9) states:

(9) DENIAL, SUSPENSION, OR REVOCATION.--The department may deny, suspend, or revoke any license issued hereunder or under the provisions of s. 320.77, 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 wrongdoing on the part of the licensee:

However, an examination of the legislative history of section 320.27(9) shows that the Department's construction of section 320.27(9), that a single felony conviction is sufficient to support a license revocation, is correct.

The opening paragraph of section 320.27(9) assumed its present form when it was amended by section 2 of chapter 88-395, Laws of Florida. Prior to that amendment it read:

(9) DENIAL, SUSPENSION, OR REVOCATION.--The department may deny, suspend, or revoke any license issued hereunder or under the provisions of s. 320.77, for the violation by the licensee of any of the provisions of this section or on any of the following grounds:

Paragraph (q) "conviction of a felony," was already in existence before the amendment and was not directly amended by it. This change would seem to support Respondent's contention that the 1988 amendment changed the law so that whereas before a license could be revoked for a single felony, afterward a pattern of felonies was required for a revocation.

However, another amendment to section 320.27(9) made by section 2 of chapter 88-395 contradicts such an intent. This section added a paragraph (s) to section 320.27(9), as follows:

When a motor vehicle dealer is convicted of a crime which results in his being prohibited from continuing in that capacity, the dealer may not continue in any capacity within the industry. The dealer shall have no financial interest, management, sales or other role in the operation of a dealership. Further, he may not derive income from the dealership beyond reasonable compensation for his ownership interest in the business.

(Emphasis added)

This provision, in the same legislative enactment and the same subsection of Florida Statutes as the language on a "pattern of wrongdoing," clearly conflicts with that language in that it allows a dealer to be barred from licensing for a single conviction of a crime, rather than for a pattern of such convictions. It is the judiciary's duty to uphold and give effect to all provisions of a legislative enactment, and to adopt any reasonable view that will do so. State

v. Zimmerman, 370 So.2d 1179 (Fla. 4th DCA 1979). Where possible, It is the duty of the courts to adopt that construction of a statutory provision which harmonizes and reconciles it with other provisions of the same act. Woodgate Development Corporation v. Hamilton Investment Trust, 351 So.2d 14 (Fla. 1977). The only construction which harmonizes these statutory provisions is the one adopted by the Department, namely, that the "pattern of wrongdoing" language is not intended to apply to criminal convictions. Thus, for the other less serious violations listed in section 320.27(9), a pattern must be shown. For criminal convictions, however, a dealer license may be revoked and the dealer barred from licensing under paragraph's (q) and (s) by a single conviction. Other then selling his ownership interest for "reasonable compensation," he is through with the motor vehicle business until he can show rehabilitation under section 320.273, Florida Statutes.

The Department's construction of the statute is consistent with the legislative intent expressed by section 320.605, Florida Statutes, which provides:

It is the intent of the legislature to protect the public health, safety, and welfare of the citizens of the state by regulating the licensing of motor vehicle dealers and manufacturers, maintain competition, providing consumer protection and fair trade and providing minorities with opportunities for full participation as motor vehicle dealers. (Emphasis supplied).

The Respondent's construction, on the other hand, would be contrary to this intent by allowing a dealer to operate his business from the cell of a Federal prison.

Construction of a statute by the administrative agency charged with its enforcement and interpretation is entitled to great weight and the courts will not depart from such a construction unless it is clearly erroneous. Warnock v. Florida Hotel & Restaurant Commission, 178 So.2d 917 (Fla. 3rd DCA 1965), app dismd 188 So.2d 811 (Fla.). Far from being "clearly erroneous," the Department's construction is clearly correct. As was stated by the court in Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA, 1984):

Agencies are afforded wide discretion in the interpretation of a statute which it administers and will not be overturned in appeal unless clearly erroneous. [citations omitted] The reviewing court will defer to any interpretation within the range of possible interpretation.

As to the penalty, the Department's concern as to the honesty of a convicted felon in such matters as his statutory duty to obtain motor vehicle titles on behalf of his customers (see section 319.23(6), F.S.), is reasonable. Therefore, revocation of Respondent's license is appropriate.

WHEREFORE, the Department prays that a final order be entered substituting the Conclusions of Law set out above for those in the Recommended Order and revoking the Respondent's motor vehicle dealer license.

Respectfully submitted, ENOCH J. WHITNEY

General Counsel

MICHAEL J. ALDERMAN

Assistant General Counsel Department of Highway Safety

and Motor Vehicles

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

Florida Bar #242357

Telephone: (904) 488-1606

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular United States mail to James R. Cunningham, Esquire, 200 East Robinson, Suite 1220, Orlando, Florida 32801, this 13th day of June, 1994

LIT93-580.14

MICHAEL J. ALDERMAN

Docket for Case No: 93-006817

Orders for Case No: 93-006817