STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 00-3794

)

HOWARD FLOWERS, d/b/a )

TALLAHASSEE TRUCK SERVICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on October 12, 2000, at the Division of Administrative Hearings, in Tallahassee, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Harold McLean, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

407 South Calhoun Street Tallahassee, Florida 32399-0800

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent should be sanctioned for failure to renew his registration as a motor vehicle repair shop for the current year.

PRELIMINARY STATEMENT

On July 21, 2000, the Division of Consumer Services of the Department of Agriculture and Consumer Services (Department), filed an Administrative Complaint in the case of Respondent Howard Flowers (Mr. Flowers), doing business as Tallahassee Truck Service. On July 29, 2000, Mr. Flowers demanded a formal hearing before the Division of Administrative Hearings. The formal hearing was held on October 12, 2000.

The Department offered one exhibit which was admitted into evidence. The Department presented the testimony of three witnesses.

A Transcript was filed on October 26, 2000. Proposed recommended orders were due on November 5, 2000. The Department requested an enlargement of the time for submission of its proposed recommended order, which was granted. The Department's Proposed Recommended Order was timely filed and duly considered. No response of any form has been received from Mr. Flowers.

FINDINGS OF FACT

1. Pursuant to the Florida Motor Vehicle Repair Act, Sections 559.901 through 559.9221, Florida Statutes, the Department regulates the repair of motor vehicles in this state.

2. Mr. Flowers held a motor vehicle repair shop license issued by the Department which was valid through February 8, 2000.

3. On January 9, 2000, Mr. Flowers was provided with notice that his license was required to be renewed by February 8, 2000.

4. In order to have his license renewed, Mr. Flowers was required to pay a renewal fee of $50.00. He did not pay the renewal fee by the due date.

5. During the period January 9, 2000, through September 21, 2000, in a continuing effort to persuade Mr. Flowers to renew his license, the department sent Mr. Flowers four letters, made three visits to the premises, and contacted the business at least nine times telephonically.

6. Subsequent to his failure to renew his license, Mr.

   
   

   Flowers has continued to operate his vehicle repair facility and has, on at least three occasions, operated his motor vehicle repair shop by working on motor vehicles for compensation.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57(1), Florida Statutes.

8. The party seeking to prove the affirmative of an issue has the burden of proof. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981) and Balino v. Department of Health and Rehabilitative Services, 348

   So. 2d 349 (Fla. 1st DCA 1977). Therefore, the burden of proof is on the Department.

9. Because the effect of the action sought by the Department is suspension or revocation of a valuable business license, the Department must prove its case by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

10. Section 559.904(8), Florida Statutes, provides that motor vehicle repair shop licenses must be renewed annually. It further provides that the Department may not issue the license until required fees are paid.

11. Section 559.904(10), Florida Statutes, provides that the Department may refuse to renew the registration of a motor vehicle repair shop if the shop has failed to meet the requirements for registration.

12. Section 559.920(1), Florida Statutes, provides that it is an unlawful practice to engage in repair work for compensation without being registered with the department or having submitted an affidavit of exemption to the Department.

13. Section 559.921, Florida Statutes, provides for penalties including a fine not to exceed $1,000 per incident and an order to cease and desist.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of operating a motor vehicle repair shop without a license on three occasions, imposing a fine of $3,000, and ordering the Respondent to cease and desist engaging in the repair of motor vehicles.

DONE AND ENTERED this 22nd day of November, 2000, in

Tallahassee, Leon County, Florida.

HARRY L. HOOPER

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 22nd day of November, 2000.

COPIES FURNISHED:

Howard Flowers Tallahassee Truck Service 3321 Garber Drive

Tallahassee, Florida 32303

Harold McLean, Esquire Department of Agriculture

and Consumer Services

407 South Calhoun Street Mayo Building, Room 515

Tallahassee, Florida 32399-0800

Richard D. Tritschler, General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-003794

Orders for Case No: 00-003794