Respondent. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on April 23, 1987, in Tampa, Florida. The issue for determination in this proceeding is whether disciplinary action should be taken against respondent's motor vehicle dealer license for violations of Chapter 319 and 320, Florida Statutes.
For Petitioner: Michael J. Alderman, Esquire
For Respondent: Michael N. Kavouklis, Esquire
By Administrative Complaint dated September 17, 1986, respondent is charged with various violations of Chapters 319 and 320, Florida Statutes. As refined at the administrative hearing by counsel for the petitioner, the factual bases alleged for the violations charged pertain to the sale of two motor vehicles from a supplemental lot for which the respondent held a license. In support of the charges, petitioner offered the testimony of Inspector Lois Marie Jarvis, Lawrence R. Peters, Bruce R. Reich, William S. Ryder and Donald L. Stone.
Petitioner's Exhibits 1-3, 8, 11, 12, 14 and 15 were received into evidence.
In support of his position, Donald Hunt, the owner of T.A.S. Auto Sales, testified in his own behalf, and also presented the testimony of Tim Nguyen, Cecil Durrance, John Fred Hutton, James Crouse, Neil C. Chamelin and William L. Lamb. Respondent's Exhibits 1 through 8 were received into evidence.
Subsequent to the hearing, the parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed
factual findings are not included in this Recommended Order, they are rejected for the reasons set forth in the Appendix hereto.
Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the demeanor of the witnesses, the following relevant facts are found:
At all times pertinent to this proceeding, respondent T.A.S. Auto Sales held independent motor vehicle license #6VI-2652, with a licensed place of business at 117 1/2 Central Avenue in Brandon, Florida. The owner of T.A.S. Auto Sales is Donald Hunt.
On May 1, 1985, the Division of Motor Vehicles issued license number 5VI-003620A to T.A.S. Auto Sales for a supplemental location at 312 East Brandon Boulevard in Brandon, Florida. The expiration date on this license was April 30, 1986.
Donald Hunt leased the property at 312 East Brand on Boulevard and operated a retail car sales business there until approximately mid-June of 1985. He then decided to sell the business to Clarence W. Jenkins, and entered into an Assignment of Lease on July 1, 1985. According to Mr. Hunt, it was his intent to allow Mr. Jenkins to operate under the supplemental license of T.A.S. Auto Sales while Mr. Jenkins, doing business as Brandon Auto Brokers, obtained his own Florida Dealers License. However, according to Mr. Hunt, said arrangement was to terminate no later than July 28, 1985. A letter setting forth this agreement was received into evidence as respondent's Exhibit 4. From July 1, 1985, through July 28, 1985, Donald Hunt did supervise all title work performed through Brandon Auto Brokers and/or Mr. Jenkins.
During July and early August, 1985, Brandon Auto Brokers secured a County occupational license, a Department of Revenue Certificate of Registration to collect sales and use taxes, a reassignment of telephone numbers, an insurance binder, a surety bond and membership in the Florida Independent Automobile Dealers Association. Signage indicating either Brandon Auto Brokers or "under new management" was also placed on the premises, but the date upon which such signage was erected was not established.
Lois Jarvis, an inspector with the Division of Motor Vehicles, testified that she spoke on the telephone with Mr. Hunt and Mr. Jenkins on August 9, 1985, and thereafter mailed to Mr. Jenkins an application form for a dealer's license. It was Inspector Jarvis' understanding that Mr. Hunt was allowing Jenkins to operate under Mr. Hunt's supplemental license until such time as Jenkins obtained his own license. On September 4, 1985, she visited the supplemental lot to check on Mr. Jenkins' incomplete application. Her next visit with either Mr. Hunt or Mr. Jenkins occurred on September 23, 1985. At that time, while at Mr. Hunt's lot on Central Avenue, Mr. Hunt informed her that he had nothing more to do with the supplemental lot on Brand on Boulevard, and gave Ms. Jarvis his license for that location. Inspector Jarvis then went over to the supplemental lot and issued a Notice of Violation to Mr. Jenkins/Brandon Auto Brokers for offering, displaying for sale and selling motor vehicles without a license. On September 24, 1985, Ms. Jarvis requested the Department to cancel dealer license 5VI-3620A on the ground that "dealer closed lot and surrendered license." Mrs. Jarvis testified that she did not visit either the supplemental lot or the main lot in July or August of 1985. Her work records for July and August do not reflect a visit to either location.
Mr. Hunt, and several witnesses testifying in respondent's behalf, testified that he told Inspector Jarvis in early July that he would have nothing more to do with the supplemental lot beyond July 28, 1985. It was their testimony that Mrs. Jarvis' response was that "there was no way Mr. Jenkins could be issued a license by July 28th, to which Mr. Hunt responded, "that's not my problem." Mr. Hunt admits that he did not specifically request Mrs. Jarvis to cancel his license for the supplemental lot as of July 28th, and that he did not deliver that license to Mrs. Jarvis until September 23, 1985.
Based upon the demeanor and possible motives of the witnesses, as well as the documentary evidence received into evidence, it is concluded that Inspector Jarvis did not visit either the supplemental lot or the main lot for which T.A.S. held licenses in June, July or August of 1985. It is further found that Inspector Jarvis did not become aware that Mr. Hunt intended to cease all relationships with the supplemental lot until he delivered the license for those premises to her on September 23, 1985.
By statute, an independent motor vehicle license period is from May 1 to April 30 of the following year. Licenses expire annually, "unless revoked or suspended prior to that date." Section 320.27(4), Florida Statutes. The Department has no rule, regulation, policy or established procedure for a licensee to surrender or cancel a license prior to the expiration date.
On July 30, 1985, Bruce Reich purchased a 1980 Chevrolet Camero from the Jenkins at the supplemental lot. His checks were made payable to Brandon Auto Brokers. He did not think he was buying a car from T.A.S. or from Don Hunt. On or about September 30, 1985, Mr. Reich filed a Complaint Affidavit against Brandon Auto Brokers regarding this transaction. As of the date of the hearing, Mr. Reich had still not received title to the vehicle he purchased.
On August 26, 1985, William S. Ryder purchased a 1981 Van from the Jenkins at the supplemental lot. On or about October 2, 1985, Mr. Ryder filed a Complaint Affidavit against T.A.S. Auto Sales on the ground that he had not received a clear title or plates for this vehicle. He had previously attempted to locate Mr. Jenkins, but was unable to find him.
CONCLUSIONS OF LAW
The Administrative Complaint charges respondent with nine violations of Chapters 319 and 320, Florida Statutes. The burden of proof in this proceeding is upon the Department to establish such violations by clear and convincing evidence.
Among the statutory violations cited in the Administrative Complaint are failure to transfer title; failure to have a duly assigned title in possession of the dealer from the time the vehicle is acquired until time of its disposition; commission of a fraud or willful misrepresentation in applying for or obtaining a license; perpetration of a fraud upon any person as a result of dealing in motor vehicles; misrepresentation or false or deceptive or misleading statements with regards to the sale or financing of motor vehicles; failure of a dealer to comply with the terms of a written agreement pursuant to the sale of a motor vehicle; and use of a dealer license identification number by any person other than a licensed dealer or his designee. The Department has failed to produce clear and convincing evidence that respondent, T.A.S. Auto Sales, has violated any of the statutory provisions cited in the Complaint. While it appears that Mr. Jenkins, doing business as Brandon Auto Brokers, may have
violated the law with respect to the vehicles purchased by Mr. Reich and Mr. Ryder, the Department produced no evidence whatsoever that such actions were performed at the instance of, or even with the knowledge of, the licensee in this proceeding; to wit: T.A.S. Auto Sales or its owner, Donald Hunt. Nor has the Department otherwise demonstrated that the actions of Mr. Jenkins or Brandon Auto Brokers are attributable to the respondent in this case.
The Department seems to take the position that until the respondent surrendered its license for the supplemental lot, it was responsible for all activities which occurred on that lot. Yet, respondent is not charged with a failure to notify the Department that it had ceased all relationships with the supplemental lot. Indeed, no such charge could be made, for there is no statutory, regulatory or Departmental policy or procedural mandate to notify the Department that a licensee no longer desires to engage in business at a particular location. Absent such a directive, respondent cannot be found guilty of a violation.
The evidence produced by the respondent that in early July it did notify the Department, through Inspector Jarvis, of its intent to cease any relationships with the supplemental lot on July 28, 1985, is not credible. However, that fact is not dispositive of any issue in this proceeding. Absent some duty upon a licensee to surrender its license or to notify the Department that it no longer desires to engage in business at a certain location, a licensee may not be disciplined for failure to do so. Likewise, a licensee can not be held liable for the actions of a non-licensee or another dealer when there has been absolutely no demonstration that the licensee had knowledge of or acquiesced in such actions. Under the facts demonstrated in this proceeding, it is clear that the respondent intended and did cease all its operations at the supplemental lot as of July 28, 1985, and that any transactions which occurred on that lot after that date were done outside the control, and without the knowledge of the respondent.
The Department has failed to establish that there was any duty upon the respondent to take some affirmative action to surrender or have the Department cancel its license for the supplemental lot. If the Department intends for its licensees to notify it when businesses are sold or closed, it must give some directive and guidance to those licensees regarding the appropriate manner for doing so. Absent such guidance, respondent's license is not subject to disciplinary action either on that ground or for occurrences occasioned by another dealer. There simply has been no evidence that the respondent committed any of the offenses charged in the Administrative Complaint.
