STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, DIVISION ) OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 98-2198

)

ROBERT E. STINTZI, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on November 30, 1998.

APPEARANCES

For Petitioner: Michele Guy

Assistant General Counsel Department of State Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

For Respondent: Gordon R. Duncan

Duncan & Tardif, P.A. Post Office Box 249

Fort Myers, Florida 33902 STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of employing an unlicensed person to perform motor vehicle repossessions, in violation of Section 493.6118(1)(n), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Amended Administrative Complaint dated April 9, 1998, Petitioner alleged that Respondent employed an unlicensed person, Ross Layne Cardwell, to perform motor vehicle repossessions from April 4 to June 24, 1997, in Charlotte County.

By undated Election of Rights, Respondent disputed the facts and demanded a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence Petitioner Exhibits 1-9. Respondent called two witnesses and offered into evidence Respondent Exhibits 1 and 2. All exhibits were admitted.

The court reporter filed the Transcript on January 4, 1999.

FINDINGS OF FACT

1. Respondent holds a Class "E" Recovery Agent license, Number E00-00107, effective October 29, 1997, and expiring on October 29, 1999. Respondent holds a Class "C" Private Investigator license, Number C00-010139, effective June 30, 1997, and expiring on June 30, 1999. Respondent holds a Class "ZR" Organizational Officer Position, Number ZR98-00005.

2. Respondent owns TWI, Incorporated (TWI). TWI engages in the business of repossessing motor vehicles. Respondent also owns Florida State Towing Company and Florida State Transporting Company, which respectively engage in the businesses of towing motor vehicles and transporting motor vehicles. These three businesses operate out of the same business location.

3. In 1996, TWI hired Ross Cardwell as a recovery agent intern. Mr. Cardwell applied for a recovery agent's license, but Respondent denied the application. Mr. Cardwell resigned from TWI and engaged in the repossession business in another state.

4. Mr. Cardwell returned to Florida, and Florida State Towing Company rehired him on April 4, 1997. Respondent and Mr. Cardwell agreed that Mr. Cardwell would reapply for a recovery agent's license. In the meantime, Mr. Cardwell would tow vehicles for Florida State Towing Company.

5. Respondent assigned Mr. Cardwell responsibilities in the field and the office. On several occasions, Mr. Cardwell assisted Respondent in repossessing motor vehicles.

6. The procedure followed by Mr. Cardwell and Respondent was for Respondent to take control of the vehicle. After having done so, Respondent directed Mr. Cardwell to tow the vehicle to the company's lot. While Mr. Cardwell was towing the vehicle back to the lot, Respondent would locate other vehicles for repossession.

7. Petitioner has produced evidence of company log entries that would suggest that Mr. Cardwell handled repossessions. However, these logs and anecdotal evidence in the form of testimony of two former employees is insufficient evidence to establish that Mr. Cardwell performed acts that would require a recovery agent's license. There is no direct evidence of such

   unlawful acts by Mr. Cardwell, and Respondent's description of their method of doing business is entirely plausible.

8. Petitioner has failed to prove by clear and convincing evidence that Mr. Cardwell performed acts that required a recovery agent's license.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

10. Section 493.6118(1)(n) provides that Respondent may discipline the license of a person who employs an unlicensed person to conduct activities regulated under Chapter 493.

11. Section 493.6101(22) defines "repossession" as the "recovery of a motor vehicle" by an individual authorized by the legal owner or lienholder. The statutory definition concludes: "A repossession is complete when a licensed recovery agent is in control, custody, and possession of such motor vehicle "

12. The evidence fails to establish that Mr. Cardwell's participation in Respondent's repossession of motor vehicles constituted "repossession," as defined by the statute. Once Respondent established possession, custody, and control of a vehicle, Mr. Cardwell's involvement in towing the vehicle no more constituted the act of "repossession" than did a security guard's

    involvement in guarding the company lot to which the vehicle was towed.

13. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. Petitioner has failed to prove by clear and convincing evidence that Respondent employed an unlicensed person to perform repossessions.

RECOMMENDATION

It is

RECOMMENDED that the Department of State enter a final order dismissing the Amended Administrative Complaint.

DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1999.

COPIES FURNISHED:

Michele Guy

Assistant General Counsel Department of State Division of Licensing

The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250

Gordon R. Duncan Duncan & Tardif, P.A. Post Office Box 249

Fort Myers, Florida 33902

Honorable Katherine Harris Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-002198

Orders for Case No: 98-002198