STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0413

)

BEST VALUE USED CARS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on March 27, 1987 in Plant City, Florida.

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Neil Kirkman Building Tallahassee, Florida 32399-0504

For Respondent: Corey R. Stutin, Esquire

Post Office Box 3529 Orlando, Florida 32802

By Administrative Complaint dated December 3, 1986, the Department of Highway Safety and Motor Vehicles, Petitioner, seeks to revoke, suspend or levy a fine against the license of Best Value Used Cars, Respondent. As grounds therefor it is alleged Respondent traded in a 1984 Nissan 4-door sedan to Bell Chevrolet without advising Bell in writing that the Nissan was a "rebuilt" vehicle whose title reflected the FLA number in violation of Section 319.14(2), Florida Statutes. At the hearing, Petitioner stated the maximum penalty sought was a $1,000 fine.

At the hearing Petitioner called three witnesses, all employees of Bell Chevrolet, Respondent and his daughter testified on behalf of Respondent, and one exhibit was admitted into evidence. Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto, Best Value Used Cars was licensed as am independent motor vehicle dealer holding License No. 6V1-5457. Best Value Used Cars is owned by David Stroud.

   
   

2. Wendy Stroud, daughter of David Stroud, was employed by Bell Chevrolet as a title clerk before and during August 1986.

3. Employees of Bell Chevrolet are allowed to purchase two cars per year from Bell without paying sales commissions.

   
   

4. David Stroud had a 1984 Nissan he intended to trade in on a car for his daughter, He took this Nissan to Bell for an appraisal and to see if he could work out a deal. The title to the Nissan was in the name of Best Value Used Cars and showed the Nissan as a rebuilt car.

   
   

5. Rebuilt cars have a lower sale value than do cars that have not been wrecked.

   
   

6. Initially, Stroud attempted to trade the Nissan on a Corvette. John Barton, who was in charge of new car sales, drove the Nissan around the block while Stroud drove the Corvette. Since the Nissan lien was not paid off, no deal was consummated.

   
   

7. Each of the three employees of Bell who testified was qualified to appraise the Nissan and a fair appraisal value for a 1984 Nissan 4-door sedan was $4,000 in August 1986. None of these witnesses recall appraising the Nissan. It is not a normal practice to take in a rebuilt vehicle for wholesale.

   
   

8. Gary Sears, Bell general manager, testified his only involvement was to fill out the sales document (Exhibit 1) using the figures supplied him by others. John Lindberg, Bell truck manager, sold Stroud the 1982 Ford pickup he purchased (Exhibit 1) by trading in the Nissan and paying the $2,000 difference in the value of each vehicle. All of these witnesses denied seeing the title to the Nissan until after the deal was closed and denied that Stroud had ever told them the Nissan had a rebuilt title.

   
   

9. Normally the person doing the appraisal would at least look at the title before reducing the appraisal to writing.

   
   

10. When a transaction closes, the general manager at Bell normally clips all of the papers together and presents them to the title clerk who processes the titles involved.

    
    

11. The same day Stroud left the Nissan in exchange for the Ford, the Nissan was moved for wholesale. John Lindberg learned from another dealer that the Nissan had a rebuilt title and he testified he first saw the vehicle title the following week. He told Wendy Stroud the deal was held up, but gave her no specific instructions regarding the title. Wendy Stroud received the Nissan title and when the Ford title reached her desk, she processed the titles routinely. Shortly after the Nissan's title was changed to Bell Chevrolet, Wendy Stroud was fired from her job as title clerk at Bell Chevrolet.

    
    

12. David Stroud signed Exhibit 1 and four other documents when he traded the Nissan in on the Ford, but the only document he received was Exhibit 1, which he offered into evidence. This exhibit does not bear the seller's signature and is entitled Buyer's Worksheet. These other documents included notification that the vehicle had been wrecked, that the odometer reading was accurate, and something about a $100 payment for maintenance insurance for 30 days. None of these documents was offered into evidence.

13. No one challenged Stroud's testimony that he signed four other documents, but Petitioner offered none of these documents into evidence to corroborate or rebut any testimony. When Stroud returned from the bank with the check for the $2,000 balance, the Nissan was already gone from Bell's lot.

    
    

14. Bell's employees all denied ever seeing the Nissan title before the transaction was completed, or that Stroud told them the Nissan had been rebuilt. Nor did they receive written notice from Stroud that the Nissan had been rebuilt. Stroud testified that when he first took the Nissan for an appraisal and made the attempt to purchase the Corvette, he gave the keys and title to Barton, who, after driving the Nissan, gave the keys and title to Sears. Both Strouds testified that David Stroud received back the title and keys from Sears.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Bearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

16. The Administrative Complaint alleges only a violation of Section 319.14(2), Florida Statutes, by knowingly selling, exchanging, or transferring a vehicle without, prior to consummating the sale, exchange, or transfer, disclosing in writing to the purchaser, customer, or transferee the fact that the vehicle had been titled, registered, or used as a rebuilt vehicle. At the commencement of the hearing, Petitioner's opening statement indicated this was the sole offense alleged and the sole sanction sought was an administrative fine of $1,000.

    
    

    3. Section 319.14(2), Florida Statutes, provides: No person shall knowingly sell, exchange, or transfer a vehicle referred to in subsection

    (1) without, prior to consummating the sale, exchange, or transfer, disclosing in writing to the purchaser, customer, or transferee the fact that the vehicle has previously been titled, registered, or used as a taxi cab, police vehicle, for-hire vehicle, or rebuilt vehicle, as the case may be.

    
    

    Violation of Section 319.14(2) is a misdemeanor of the second degree and, unless otherwise made an offense for which Petitioner may take disciplinary action, is beyond the jurisdiction of this tribunal.

    
    

17. Section 320.27(9), Florida Statutes, authorizes the Department to revoke or suspend a dealer's license for various offenses noted in that section. None of the offenses there listed include a violation of Section 318.14(2). However, Section 320.27(12) provides in pertinent part:

    
    

    In addition to the exercise of other powers provided in this section, the department may levy and collect a civil fine, in an amount not to exceed $1,000 for each violation, against any licensee if it finds the licensee has violated any provision of this section or has violated any other law of this state related to dealing in motor vehicles.

18. From the evidence presented, it is unclear what documents Respondent signed when he transferred the Nissan in exchange for the pickup. It is clear that Bell Chevrolet prepared all of the documents, as would be expected when a small used car dealer traded with a large new car dealer, and the only document presented was the Buyer's Worksheet which was offered into evidence by the Respondent. Since Respondent was given no document other than the Buyer's Worksheet, these other documents were in the possession of Bell Chevrolet. Had these documents been submitted and none involved notice that the Nissan had a rebuilt title, then perhaps it could be presumed that Respondent signed no such document. Here, in the absence of some corroborating evidence, we have directly conflicting testimony regarding when Bell Chevrolet employees were aware, or should have been aware by seeing the title, that the Nissan had a rebuilt title. Petitioner has the burden to show, by a preponderance of the evidence, the facts alleged. Balino v. Department of Health and Rehabilitative Services, 348 So.2D

    349 (Fla. 1st DCA 1977). This burden is not satisfied by proof creating an equipoise. Florida Department of Health and Rehabilitative Services v. Career Service Commission, 259 So.2D 412 (Fla. 4th DCA 1974).

    
    

19. From the foregoing, it is concluded that the Division of Motor Vehicles has failed to prove by a preponderance of the evidence that Best Value Used Cars violated Section 319.14(2), Florida Statutes, as alleged. It is

RECOMMENDED that the Administrative Complaint dated December 3, 1986, filed against Best Value Used Cars, be dismissed.

ENTERED this 7th day of May, 1987, in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0413

Treatment accorded Petitioner's proposed findings:

1. Included in HO #1.

2. Included in HO #1.

3. Included in HO #4.

4. Included in HO #4.

5. Included in HO #6.

6. Included in HO #6.

7. Included in HO #6.

8. Rejected as contrary to the testimony of the Strouds that Bell employees were given the title to the Nissan.

9. Included in HO #11.

10. Accepted.

11. Included in HO #11.

12. Accepted insofar as consistent with HO #11.

13. Included in HO #2.

14. Accepted.

15 Accepted insofar as included in HO #11.

1. Included in HO #11.

2. Included in HO #7.

3. Included in HO #3.

4. Included in HO #4.

5. Accepted, but not in his exclusive possession.

Treatment accorded Respondent's proposed findings:

1. a. b. c. Accepted.

   
   

   Each paragraph following the heading Findings on Behalf of Petitioner have been numbered 2 through 6. Those paragraphs following the heading Facts on Behalf of Respondent have been given numbers 7 through 9.

   
   

2. Accepted insofar as included in HO #7, 8.

3. Included in HO #8.

4. Included in HO #6 and 7, otherwise rejected as testimony of witnesses and not a finding of fact.

5. Rejected as mere testimony of witnesses.

6. Rejected as mere testimony of witnessess..

7. Included in HO #6, 7, and 14.

8. Included in HO #12.

9. Included in HO #11.

COPIES FURNISHED:

Michael J. Alderman, Esquire Neil Kirkman Building Tallahassee, Florida 32399-1606

Corey R. Stutin, Esquire Post Office Box 3829 Orlando, Florida 32802

Leonard R. Mellon Executive Director

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0504

Docket for Case No: 87-000413

Orders for Case No: 87-000413