STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

v. ) CASE NO. 92-1788

)

COLUMBIA MOTOR SALES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 29, 1992, in Lake City, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Michael J. Alderman

Assistant General Counsel Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

For Respondent: Stephen M. Witt

Attorney at Law

Post Office Box 2064

Lake City, Florida 32056 STATEMENT OF ISSUES

The ultimate issue is whether the motor vehicle dealer's license of Columbia Motor Sales should be revoked or otherwise disciplined based on the acts alleged in the Administrative Complaint.

PRELIMINARY STATEMENT

The Division of Motor Vehicles (DMV) presented the testimony of Neil C. Chamelin and had Exhibits 1-3 admitted in evidence.

Respondent, Columbia Motor Sales, presented the testimony of Jose B. Menna and had one exhibit admitted in evidence.

The transcript was filed on June 17, 1992. The parties' proposed orders were to be filed on June 29, 1992. DMV timely filed its proposed findings of fact and conclusions of law on June 26, 1992. Respondent filed its proposed findings of fact and conclusions of law on July 6, 1992, and a letter accompanying the late proposed order asked for an extension of time because Respondent was not aware that the transcript had been filed until DMV's proposed order was received. Respondent's letter shows no copy to DMV and its fails to

comply with the requirements of Rule 22I-6.016, Florida Administrative Code.

The parties were warned that late proposed orders would not be considered and would not receive individual ruling on the proposed findings of fact (Transcript page 36, lines 10-17). Respondent has offered no good cause for the late filing. Accordingly, the Respondent's proposed order is rejected as untimely and the request for extension of time is DENIED.

DMV's proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Columbia Motor Sales, is a motor vehicle dealer licensed under Section 320.27, Florida Statutes.

   
   

2. Respondent is owned solely by Jose B. Menna.

   
   

3. In order to obtain the license, Menna completed an application for licensure on behalf of Respondent and filed it with DMV on July 5, 1991. The license was issued the same day.

   
   

4. On the application, which was signed by Menna under oath, Menna answered "NO" to the following questions:

   
   

   Has the applicant or any partner or corporate officer or director:

   1. Been arrested on a felony or equivalent charge anywhere?

   2. Been convicted of a felony or equivalent charge anywhere?

      
      

5. As required by Section 320.37(3), Florida Statutes, DMV obtained fingerprints from Menna and submitted them to the Florida Department of Law Enforcement and the Federal Bureau of Investigation (FBI) for confirmation of Menna's criminal record.

   
   

6. The FBI's criminal history report shows that Menna was arrested for the felonies of receiving stolen property and assault with a deadly weapon and was convicted of the felony assault charge.

   
   

7. If an applicant shows an arrest or conviction on his dealer license application, DMV's policy does not require an automatic denial. If only an arrest is shown, DMV conducts a further investigation to determine the applicant's fitness for licensure. If a conviction is shown, DMV would also investigate the seriousness and nature of the offense, whether the applicant's civil rights had been restored, and the surrounding circumstances before DMV would make a determination on the application.

   
   

8. When an applicant does not reveal prior arrests or convictions on his application and DMV discovers their existence, DMV notifies the licensee and gives him an opportunity to submit documentation to clear the matter up informally.

   
   

9. DMV did send Menna a letter advising him that there was a problem with his criminal record. The letter required Menna to provide information and documents regarding these criminal events within 20 days. It further stated

   that "Failure to respond to this letter will result in an administrative proceeding to revoke you license."

   
   

10. Menna acknowledges that he received the letter, but he went to Guatemala for five weeks to sell cars and did not respond to the letter. After he returned, he says that he tried to call DMV, but at no time did he ever provide documents regarding these arrests and conviction. In fact, even at the hearing, he had no such documents with him.

    
    

11. DMV's policy and position is that an applicant's failure to disclose and truthfully answer the questions on the application raises serious questions as to the applicant's honesty and integrity in dealing with the public.

    
    

12. Menna testified that if he'd known that there were records showing the arrests and conviction, he would have answered the questions on the application "YES." He admits knowing that he had been arrested and convicted as the records show, but believed the records no longer existed.

    
    

13. It is found that Menna was not honest when he denied having been arrested or convicted, because he knew of the existence of the arrests and conviction at the time he denied them. The question was simple and straightforward. Menna believed that his denial would not be a lie as long as no records existed to show the arrest and conviction. Menna was wrong in this belief.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

15. Section 320.27 requires motor vehicle dealers to be licensed by DMV. The application process includes a requirement that the applicant's fingerprints be used to check prior criminal history. While DMV may issue a license pending the results of the fingerprint investigation, Section 320.27(3) makes the license "fully revocable" if DMV later learns that any facts set forth in the application are not true and correct.

    
    

16. DMV has broad authority to revoke a license when the criminal background check turns up arrests or convictions not disclosed on the license application. Additionally, Section 320.27(9)(b) permits DMV to revoke if the applicant is guilty of "fraud or willful misrepresentation in application for or in obtaining a license." Where a dealer conceals a conviction or arrests on the application, DMV has a legitimate concern about the dealer's honesty. This concern is consistent with the expressed legislative intent of Section 320.605 regarding dealer licensing: "to protect the public health, safety and welfare" and to "provid[e] consumer protection."

    
    

17. In this case, DMV argues in its proposed order that Respondent is guilty of violating Section 320.27(9)(q) by having been convicted of a felony. DMV further argues that revocation is appropriate for this violation. However, the Administrative Complaint does not charge this violation and does not allege these facts as ground for the revocation action. It cannot be disputed that disciplinary action cannot be taken where the administrative complaint does not charge the licensee with that particular violation. See, e.g. Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984), and Wray v. Department of Professional Regulation, Board of Medical Examiners, 435

    So.2d 312 (Fla. 1st DCA 1983). Having never charged Respondent with a violation of Section 320.27(9)(q), DMV is barred from revoking the license for a violation of that section.

    
    

18. DMV had carried the burden of proving the violation of Section 320.27(9)(b) by clear and convincing evidence. Additionally, DMV is authorized to revoke the license pursuant to Section 320.27(3). Menna was untruthful in his answers on the application and his misrepresentation must be considered willful. Since Menna has yet to provide any documentation on the arrests and convictions, the most appropriate penalty is revocation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, enter a Final Order and therein revoke the motor vehicle dealer license of Columbia Motor Sales.

RECOMMENDED this 8th day of July, 1992, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day

of July, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1788

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Division of Motor Vehicles

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-7(1-7), 8 & 9(7), and 10- 13(8-11).

   
   

2. Proposed finding of fact 14 is unnecessary.

COPIES FURNISHED:

Michael J. Alderman Assistant General Counsel Division of Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504

Charles J. Brantley, Director Division of Motor Vehicles

Room B439, Neil Kirkman Building Tallahassee, FL 32399-0500

Stephen M. Witt Attorney at Law

Post Office Box 2064 Lake City, FL 32056

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 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: 92-001788

Orders for Case No: 92-001788