STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0015

)

ELIZABETH WHITEHEAD, d/b/a )

ALL AUTO REPAIR, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 27, 1996, a formal administrative hearing was held in this case in Tallahassee and Melbourne, Florida, by telephone conference call before Daniel M. Kilbride, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lawrence J. Davis, Esquire

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent is operating a motor vehicle repair shop without being registered with Petitioner, in violation of Section 559.904, Florida Statutes, and is subject to an administrative fine.

PRELIMINARY STATEMENT

Petitioner sent a Notice of Intent, dated October 25, 1995, by certified mail, to Respondent, Elizabeth Whitehead, d/b/a All Auto Repair. The Notice informed Respondent that the Petitioner, Department of Agriculture and Consumer Services, intended to impose an administrative fine against Respondent for failing to register as a motor vehicle repair shop or for having failed to submit an affidavit for exemption if only engaged in minor repairs, as required by Section 559.904, Florida Statutes. In response to Petitioner's Notice, Respondent sent a letter to the Petitioner entitled a Petition for Declaratory Judgment in the nature of a petition for declaratory statement. The Petitioner treated this Petition as a demand for a formal hearing, pursuant to Section 120.57(1), Florida Statutes. The Petitioner forwarded this case to the Division of Administrative Hearings for formal hearing.

The final hearing was scheduled for February 27, 1996 by Notice of Hearing mailed on January 25, 1996, a copy of which was sent to Respondent at the address of record, 1604 C Waverly Place, Melbourne, Florida 32901. The final hearing was scheduled for 1:00 p.m., on February 27, 1996, at the Brevard County Government Center (Viera), Solid Waste Conference Room, Building D, Second Floor Conference Room, 2725 St. Johns Street, Melbourne, Florida. Respondent received the Notice of Hearing.

Prior to the hearing, Respondent filed a Motion for Non-Statutory Abatement, dated February 10, 1996. Petitioner filed a response to the Motion on February 20, 1996. On February 22, 1996, Respondent's Motion was denied by the Hearing Officer.

At the appointed time, Petitioner was present and ready to proceed.

Respondent had notice, and a diligent search and inquiry was made to determine if Respondent was present. Respondent did not appear, and the hearing commenced at 1:30 p.m.

At the final hearing, Petitioner presented the testimony of Paul Driggers, Bureau Chief of Motor Vehicle Repair, and Robert Sonnenfeld, Investigation Specialist II. One exhibit, which was a composite exhibit consisting of seven individual documents, was admitted into evidence. No evidence was offered on behalf of Respondent. No transcript was ordered. The parties were granted 10 days from the date of the hearing to file their Proposed Recommended Orders.

The Proposed Recommended Order submitted by Petitioner was received on February 28, 1996. No proposals were submitted on behalf of Respondent.

Explicit rulings on the proposed findings of fact contained in the Petitioner's proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 96-0015.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the enforcement and regulation of Sections 559.901-559.9221, Florida Statutes, cited as the "Florida Motor Vehicle Repair Act".

   
   

2. On October 13, 1995, an Investigation Specialist with the Bureau of Motor Vehicles, went to 1604 C Waverly Place, Melbourne, Florida.

   
   

3. At that location is a building that has signs on it which read "All Auto Repair, Acura and Honda Factory Trained". All Auto Repair occupied approximately two-thirds of the building. There were two bays and two vehicle lifts. In the building were located snap-on tools; and while inside, the Investigation Specialist observed two persons who appeared to be mechanics. One of the two was working on a vehicle in one of the two bays. Besides the vehicle being worked on, other vehicles were on the property. The person who was not working on a vehicle introduced himself as Rudy Garcia, Manager of the business.

   
   

4. While conversing with Mr. Garcia, a telephone call was received at the business. A female voice on the telephone identified herself as Elizabeth Whitehead, owner of All Auto Repair. She was informed about the registration and why the inspector was there.

   
   

5. Mr. Garcia would not sign for the registration package which the inspector had with him. The registration package was left at the place of

   business. The registration package had an application, a copy of the Florida Motor Vehicle Act, and an envelope to send the application in to the Department.

   
   

6. On or about October 19, 1995, Respondent sent a letter to the inspector addressed to Petitioner in Tallahassee concerning his visit to her ". . . private place of labor".

   
   

7. On October 25, 1995, the Petitioner sent to Respondent a Notice of Intent to Impose Administrative Fine for failure to register or file an affidavit of exemption.

   
   

8. Respondent received the Notice.

   
   

9. The response from Respondent was a letter dated November 17, 1995, which the Petitioner construed as a demand for a hearing.

   
   

10. After the Notice of Intent was sent, an analyst with the Bureau of Motor Vehicle Repair called the telephone number for All Auto Repair to confirm that it was open and doing motor vehicle repair. It was open and doing motor vehicle repair.

    
    

11. Subsequent to his visit on October 13, 1995, the inspector drove by All Auto Repair during November and December and observed that the repair shop was open for business.

    
    

12. On January 30, 1995, 12 to 15 vehicles were observed behind a chain- link fence, which surrounded the grounds of All Auto Repair. In the northernmost bay, a Ford LTD was being worked on by a technician. Among the cars on the property were some Hondas, a Toyota, a Suzuki, and a Lincoln Town Car.

    
    

13. Prior to the hearing on February 27, 1996, an inspector went by All Auto Repair and observed a technician working on a red Honda in one of the bays. He observed two Hondas and an Acura on the grounds. At some point in time, Rudy Garcia was seen on the grounds.

    
    

14. Respondent has not registered with the Petitioner as a motor vehicle repair shop and has not submitted an affidavit of exemption to the Petitioner.

    
    

15. Respondent is operating a motor vehicle repair shop.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Petitioner has the burden of proving the allegations within the Notice of Intent to Impose Administrative Fine and establishing a basis for an administrative fine it seeks to impose on Respondent, by a preponderance of the evidence. Florida Department of Transportation v. J.W.C., 396 So.2d 778 (Fla. 1st DCA 1981).

18. A motor vehicle repair shop is defined in the statutes under Section 559.903(7), Florida Statutes, which states:

    
    

    (7) 'Motor vehicle repair shop' means any person who, for compensation, engages or attempts to engage in the repair of motor vehicles owned by other persons and includes, but is not limited to: motor vehicle and recreational vehicle dealers; garages; service stations; self-employed individuals; truck stops; paint and body shops; brake, muffler, or transmission shops; and shops doing uphol- stery or glass work. Any person who engages solely in the maintenance or repair of the coach portion of a recreational vehicle is not a motor vehicle repair shop.

    
    

19. All Auto Repair is a motor vehicle repair shop as defined in Section 559.903(7), Florida Statutes.

    
    

20. Respondent is the owner of All Auto Repair.

    
    

21. The Florida Motor Vehicle Repair Act applies to all motor vehicle repair shops in Florida. Section 559.902, Florida Statutes.

    
    

22. Motor vehicle repair shops are required to register with the Petitioner prior to doing business in the State of Florida. Section 559.904(1), Florida Statutes.

    
    

23. It is unlawful to engage or attempt to engage in repair work for compensation of any type without first being registered with or having submitted an affidavit of exemption to the Petitioner, in violation of Section 559.920(1), Florida Statutes (1995).

    
    

24. Respondent is operating a motor vehicle repair shop, named All Auto Repair, without first being registered with Petitioner.

    
    

25. Respondent has violated and is continuing to violate Section 559.904, Florida Statutes, and is subject to the imposition of an administrative fine not to exceed $1,000.00, pursuant to Section 559.921(4), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of unlawfully engaging in

repair work for compensation without first being registered with the Petitioner, in violation of Section 559.920(1), Florida Statutes; and pursuant to Section 559.921(4), Florida Statutes, the Department of Agriculture and Consumer Services enter a Final Order imposing an administrative fine against Respondent in the amount of $1,000.00, and it is further

RECOMMENDED that Petitioner seek a temporary or permanent injunction in circuit court compelling Respondent to cease and desist in her violation of the law.

DONE and ENTERED this 20th day of March, 1996, in Tallahassee, Florida.

DANIEL M. KILBRIDE, 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 20th day of March, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0015

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact Accepted in substance: paragraphs 1-17.

Respondent's Proposed Findings of Fact

Respondent did not submit proposed findings of fact.

COPIES FURNISHED:

Lawrence J. Davis, Esquire Department of Agriculture and

Consumer Services Room 515, Mayo Building

Tallahassee, Florida 32399-0800

Ms. Elizabeth Whitehead 1604 C Waverly Place Melbourne, Florida 32901

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 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: 96-000015

Orders for Case No: 96-000015