STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, DIVISION OF ) MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) CASE NOS. 87-5616

) 88-2528

SUNSHINE AUTO SALES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on June 2, 1988 in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Assistant General Counsel Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504

For Respondent: Seril L. Grossfeld, Esquire

408 South Andrews Avenue, Suite 101 Ft. Lauderdale, Florida 33301

BACKGROUND

By administrative complaint the Respondent was charged with various violations of Chapter 319 and 320, Florida Statutes. The Respondent requested a formal administrative proceeding. Prior to commencement of that scheduled hearing, Respondent's license expired. The Petitioner denied Respondent's application for renewal, and Respondent requested a formal administrative proceeding. Both cases were consolidated and this final hearing ensued.

At hearing, Petitioner presented testimony of four witnesses and 12 evidentiary exhibits. The Respondent presented testimony of four witnesses and two evidentiary exhibits. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

The parties stipulated to the facts set forth in paragraphs 1-5, below.

Stipulated Facts

1. James Phillips is the president and sole shareholder of the Respondent, Sunshine Auto Sales, Inc.

   
   

2. The Respondent's place of business is located at 2050 North West 36 Street, Miami, Florida 33142.

   
   

3. The Respondent was issued motor vehicle dealer license number 7VI- 005928 on May 1, 1987.

   
   

4. The Petitioner's order summarily suspending Respondent's license was dated September 17, 1987, and was served on Respondent on or about November 9, 1987.

   
   

5. On December 22, 1987, the Circuit Court for the 11th Judicial Circuit, in and for Dade County, Florida, entered an emergency injunction against enforcement of Petitioner's Order of Summary Suspension, contingent upon the posting of a $2500 bond by Respondent. The bond was posted on March 31, 1988.

   
   

   Other Facts

   
   

6. On November 17, 1976, Respondent's president and sole shareholder, James Phillips, executed a sworn affidavit as part of the application for a motor vehicle dealer license. In that affidavit, he stated that no partner or corporate officer of the Respondent had ever been arrested or convicted of a felony. In subsequent annual renewal applications for the years 1977-84, Phillips stated that all terms and conditions as set forth in the original application were correct.

   
   

7. In actuality, Phillips was arrested for breaking and entering, theft and rape in 1956. In 1960, he was arrested for aggravated assault. In 1972, he was arrested for possession of a stolen motor vehicle. Grand larceny was the subject of his arrest in 1976. In 1982, he was arrested for aggravated battery. Phillips' statement that he interpreted this language on the application and renewal forms to be applicable only to the corporation itself is not credited due to his demeanor while testifying and the clarity of the statement on the application requiring such disclosure.

   
   

8. The Petitioner's policy is not to deny or revoke licenses simply on the basis of an arrest record of the applicant or licensee. Instead, when the information is correctly provided by applicants or licensees, a further investigation is made by the Petitioner to determine if there has been a conviction of a crime meriting suspension or denial of a license.

   
   

9. When Petitioner becomes aware that an applicant or licensee has falsely answered an application regarding previous arrests, the policy of Petitioner is to deny the application for licensure or institute revocation action against a licensee on the theory that such falsification shows a lack of honesty in the applicant or licensee.

10. On February 24, 1986, and May 20, 1986, James Phillips received warning letters from the Department reminding him that failure to apply for title or to file for transfer of title within 20 days following delivery of a vehicle to a purchaser is a violation of Florida law.

    
    

11. In June and July of 1987, an employee of Petitioner, Helen Wandell, made numerous attempts to obtain information from Respondent regarding a particular complaint against Respondent. Information was sought by Wandell regarding the identity of the vehicle which was the subject of the complaint. She telephoned Respondent's facilities on June 10, 11, 12, and 16, 1987, during regular business hours and received no answer. On June 17, 1987, Wandell went to the Respondent premises during regular business hours and found the facility closed. She left a note and James Phillips called her the following day. He gave her information concerning the subject vehicle which proved to be incorrect. Again, Wandell attempted to contact Respondent's establishment by telephone on June 22, and 23, 1987, but did not get an answer. She telephoned again on July 24, 1987, and spoke with Phillips. In the course of the conversation, he informed Wandell that he could not provide the vehicle identity information she sought. He further warned her not to call again, cursed her and threatened to kill her.

    
    

12. Madeline Fils-Aime does not read or understand English very well. On April 8, 1987, she entered into a parol agreement to buy a 1981 Mercury automobile from Respondent. The agreed upon price, as established by testimony of Fils-Aime, was $750. This amount was to be paid in installments as the money became available to Fils-Aime. Until the total amount of $750 was paid, the car would continue to be owned by and remain in the Respondent's establishment.

    
    

13. On April 8, 1987, Fils-Aime paid $160 to Robert Sayre, James Phillips' stepson, at Respondent's establishment toward the cost of the automobile. She received a receipt from Sayre. The receipt carried the notation "no refunds" and "sold as is." The receipt also carried a notation that the remainder of the funds would be due on April 15, 1987.

    
    

14. Fils-Aime returned to Respondent's establishment on April 16, 1987, paid another $100, received another receipt signed by Sayre carrying a notation that the remainder would be due on April 26, 1987. This receipt also carried the notation "no refunds."

    
    

15. Fils-Aime returned to the Respondent establishment again on April 21, 1987, and paid another $40 on the car. This time she received a receipt signed by Thomas Phillips, son of James Phillips, which carried the notation that the balance would be due on May 7, 1987.

    
    

16. Another payment of $100 was made by Fils-Aime on May 4, 1987. Another receipt bearing the signature of Robert Sayre was received. A new balance due date of May 14, 1987, was shown on this receipt. Fils-Aime returned at a later date to make a subsequent payment, but the Respondent's establishment was closed.

    
    

17. Approximately six weeks after the May 4, 1987, payment, Fils-Aime returned to Respondent's establishment to learn that the car for which she had been making payments was gone. Testimony of James Phillips establishes the sale of the vehicle to another person. Phillips also readily admitted knowledge of the payments made by Fils-Aime and the practice of granting extensions to her of the due date for the total balance at the time of each payment. Since his

    clientele is poor, he uses the "lay away" plan on occasion to sell vehicles to individuals like Fils-Aime. In spite of her demands, he did not return Fils- Aime's previous payments to her.

    
    

18. At the time of the May 4, 1987, payment, Phillips gave Fils-Aime an envelope to use in the event the Respondent facility was closed on her return to make a future payment. He instructed her to leave the envelope with the body shop next to Respondent's establishment.

    
    

19. A contractual document offered in evidence at hearing by Respondent to substantiate James Phillips version of the parol agreement with Fils-Aime is not credited with any probative value. The document appears unsigned by anyone and the portion of the page where Fils-Aime would have signed is conveniently torn off and missing. Additionally, Fils-Aime denied knowledge of the document.

    
    

20. After receipt of a complaint by Fils-Aime, the Petitioner's employee was denied access to Respondent's premises to inspect Respondent's records on July 21, 1987. The request was made during reasonable business hours and within the business hours posted on the fence at Respondent's establishment.

    
    

21. On August 31, 1987, Respondent sold a 1979 automobile to Gloria Little. Respondent did not apply for title for Ms. Little. She went to the tag agency herself because there was no one at Respondent's facility to go with her. She was unable to obtain the title transfer and contacted Petitioner's offices. A telephone call by Petitioner's employee resulted in an individual from Respondent's establishment being made available to assist and complete the title transaction on December 16, 1987.

    
    

22. The Respondent did not apply for title transfer to a 1975 vehicle sold to Rafael Castillo on August 8, 1987. After being contacted by a Petitioner employee, Respondent applied for the title transfer on December 16, 1987.

    
    

23. On December 29, 1987, Respondent sold a 1981 automobile to Kimberely DeNunzio. Title application to the vehicle was made in February, 1988, and issuance of the title to DeNunzio occurred February 24, 1988. The Petitioner's Order of Summary Suspension of Respondent's motor vehicle license was in effect at the time of this sale.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

25. The Petitioner has met the ultimate burden of proof as to those allegations set forth in the administrative complaint involving Madeline Fils- Aime. The evidence is clear and convincing that Madeline Fils-Aime purchased a car from Respondent, and did not receive a bill of sale, contract or other documents required by subsection 320.27(9)(i), Florida Statutes. Further, the action of Respondent in taking Fils-Aime's money, without later returning those funds or the subject automobile to her, was fraudulent and violative of subsection 320.27(9)(c) and (f), Florida Statutes. The failure to permit inspection of records by Petitioner's employee after the Fils-Aime incident also constitutes a violation of section 320.27(3), Florida Statutes. Revocation of Respondent's license is an authorized sanction which may be imposed by Petitioner pursuant to section 320.27(9), Florida Statutes.

26. The Petitioner has also denied Respondent's application for license renewal, citing Respondent's failure to comply with the requirement of section 319.23(6) and section 320.27(9)(o), Florida Statutes, that application for transfer of title be made within 20 days of the sale of a vehicle. The proof establishes that Respondent committed this violation in the course of selling vehicles to Gloria Little, Rafael Castillo, and Kimberly DeNunzio.

    
    

27. The denial of Respondent's application for renewal also is based upon Respondent's sale of an automobile to Kimberly DeNunzio at a time when Respondent's license was Suspended in violation of section 320.27(2), Florida Statutes. This violation is also proven.

    
    

28. A further ground asserted by Petitioner for denial of Respondent's application for license renewal is the failure to disclose James Phillips' felony arrest record in Respondent's original application and subsequently affirming the correctness of that application in later license renewal applications This violation of section 320.27(9)(b), Florida Statutes, is likewise proven.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's license and

denying the application for renewal of same.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of July, 1988.

DON W. DAVIS

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 22nd day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5616, 88-2528

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

PETITIONER'S PROPOSED FINDINGS

The Petitioner's proposed findings consisted of paragraphs erroneously numbered. Those paragraphs, 25 in number, have been properly numbered and are addressed as follows:

1-3. are included in findings 1-3, respectively. 4-7. are included in findings 12-18.

8-10. are included in finding 21.

11-13. included in finding 22.

14-16. included in finding 23.

17. included in finding 20.

18-19. included in finding 11.

1. included in finding 6.

2. included in finding 7.

3. included in finding 8.

23-24. included in finding 9.

25. included in finding 10.

RESPONDENT'S PROPOSED FINDINGS

The Respondent's proposed findings were likewise erroneously numbered. Numbering has been corrected and the 36 paragraphs are addressed as follows.

1-3. included.

4-15. rejected, unnecessary to result reached.

16. included in finding 12. 17-18. included in finding 6. 19-27. rejected, unnecessary.

28-29. addressed in finding 5.

1. rejected, on basis of credibility.

2. included in finding 17.

32-36. rejected as unnecessary.

COPIES FURNISHED:

Michael J. Alderman, Esquire Assistant General Counsel State of Florida, Department

of Highway Safety and Motor Vehicles Department of Legal Affairs

Neil Kirkman Building Room A-432

Tallahassee, Florida 32399-0504

Seril L. Grossfeld, Esquire

408 South Andrews Avenue Suite 101

Fort Lauderdale, Florida 33301

Charles J. Brantley

Director, Division of Motor Vehicles Room B439

Neil Kirkman Building Tallahassee, Florida 32399-0500

Enoch Jon Whitney, Esquire General Counsel

Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500

Docket for Case No: 87-005616

Orders for Case No: 87-005616