STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TNT AUTO SALES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4050

) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 4, 1992, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roger Sayre, pro se

8300 S.W. 98th Street Miami, Florida 33156

For Respondent: Judson M. Chapman, Esquire

Assistant General Counsel Department of Highway Safety

and Motor Vehicles Neil Kirkman Building Room A432

Tallahassee, Florida 32399-0504 STATEMENT OF THE ISSUE

Whether Robert Sayre's application for an independent motor vehicle dealer license authorizing him to do business as TNT Auto Sales at 2050 N.W. 36th Street in Miami, Florida, should be granted?

PRELIMINARY STATEMENT

By letter dated June 3, 1991, Respondent advised Robert Sayre of its intention to deny his application for an independent motor vehicle dealer license authorizing him to do business as TNT Auto Sales at 2050 N.W. 36th Street in Miami, Florida, and provided him with the reasons for its intended action. Sayre subsequently requested a formal hearing on the matter. On June 27, 1991, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the hearing Sayre had requested.

On April 17, 1992, Respondent filed a Motion to Amend License Denial. In its motion, Respondent sought the Hearing Officer's permission to amend the June

3, 1991, letter it had sent Sayre by adding the following as a ground for the proposed denial of his application:

The location shown on the application as the location of the business is not the true location of the business in that the location is now occupied by and leased to Fiory Motors, Inc. Also the lease attached to the application is not valid for that reason, and for the additional reason that [the] person shown as the owner of the property is no longer the owner. For these reasons Robert

F. Sayre, d/b/a TNT Auto Sales does not meet the location requirements set forth in section 320.27(3), Florida Statutes.

By order issued April 21, 1992, the Hearing Officer granted Respondent's Motion to Amend License Denial.

The formal hearing in this case was continued on four occasions at Petitioner's request before it was finally held on August 4, 1992. Three witnesses testified at the hearing: Sayre; Robin Roden, an inspector with Respondent; and Helen Esser, a former inspector with Respondent. In addition to the testimony of these witnesses, a total of five exhibits were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 15 days following the Hearing Officer's receipt of the transcript of the hearing. The Hearing Officer received the hearing transcript on August 24, 1992. On September 8, 1992, Respondent filed a proposed recommended order. The proposed findings of fact set forth in Respondent's proposed recommended order have been carefully considered and are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

1. In late 1990, Robert Sayre filed with Respondent an application for an independent motor vehicle dealer license authorizing him to do business as TNT Auto Sales at 2050 N.W. 36th Street in Miami, Florida.

   
   

2. At the time, Sayre leased the location of his proposed business from James Philips. 1/

   
   

3. Sayre no longer holds a leasehold interest in the property.

   
   

4. The property is now owned by Teobaldo Cabrera, who is leasing it to Fiory Motors, Inc.

   
   

5. Fiory Motors, Inc., has a current license from Respondent to operate as an independent motor vehicle dealer on the property.

   CONCLUSIONS OF LAW

   
   

6. Any person desiring to serve in the capacity of, or act as, an "independent motor vehicle dealer" 2/ in this state must first obtain a license to do so from Respondent. Section 320.27(2), Fla. Stat.

   
   

7. Any application for such a license must "describe the exact location of the [applicant's proposed] place of business and . . state whether the place of business is owned by the applicant and when acquired, or if leased, a true copy of the lease [must] be attached to the application." Furthermore, the application must contain the applicant's certification "that the location provides an adequately equipped office and is not a residence; that the location affords sufficient unoccupied space upon and within which adequately to store all motor vehicles offered and displayed for sale; and that the location is a suitable place where the applicant can in good faith carry on such business and keep and maintain books, records and files necessary to conduct such business, which will be available at all reasonable hours to inspection by [Respondent] or any of its inspectors or other employees." Section 320.27(3), Fla. Stat.

1. An application cannot be granted if the applicant neither owns nor leases the property identified in the application as "the exact location of the [applicant's proposed] place of business."

   
   

2. Such is the situation in the instant case. While Sayre once leased the property identified in his application as "the exact location of the [his proposed] place of business," the lease has been terminated and he currently has no interest in the property. 3/ Accordingly, his application must be denied. 4/

RECOMMENDATION

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

RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioner's application for an independent motor vehicle dealer license on the ground that he neither owns nor leases the property identified in the application as "the exact location of [his proposed] place of business."

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11 day of September, 1992.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11 day of September, 1992.

ENDNOTES

1/ It was not until May, 1991, however, that Sayre provided Respondent with written proof that he was a party to such a lease agreement.

2/ An "independent motor vehicle dealer," as that term is used in Section 320.27, Florida Statutes, is "any person other than a franchised or wholesale motor vehicle dealer who engages in the business of buying, selling, or dealing in motor vehicles." Section 320.27(1)(c)2, Fla. Stat.

3/ At hearing, Sayre presented evidence that he has leased property at another location with the intention of using it as his place of business. He has not applied, however, for a license authorizing him to do business at that location.

4/ It is unnecessary to, and therefore the Hearing Officer has not, addressed the matter of whether Sayre's application should be denied on the other grounds raised by Respondent.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-4050

The following are the Hearing Officer's specific rulings on the findings of fact proposed by Respondent:

1-3. Rejected as unnecessary.

4. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

5-6. Rejected as unnecessary.

7-9. Accepted and incorporated in substance. 10-27. Rejected as unnecessary.

28-29. Accepted and incorporated in substance.

30. Rejected as unnecessary.

COPIES FURNISHED:

Robert Sayre

8300 S.W. 98th Street Miami, Florida 33156

Robert Sayre Box 1846A

Naples, Florida 33999

Judson M. Chapman, Esquire Michael J. Alderman, Esquire Department of Highway Safety

and Motor Vehicles Neil Kirkman Building Room A432

Tallahassee, Florida 32399-0504

Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building

Room B439

Tallahassee, Florida 32399-0500

Enoch Jon Whitney, General Counsel Department of Highway Safety

and Motor Vehicles Neil Kirkman Building Room A432

Tallahassee, Florida 32399-0504

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO 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: 91-004050

Orders for Case No: 91-004050