DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, DIVISION ) OF MOTOR VEHICLES, )
vs. ) CASE NO. 92-7153
Respondent. )
This matter is before the Hearing Officer for entry of a recommended order based upon the parties' Stipulation in Lieu of Formal Hearing, and the proposed recommended orders submitted the both parties.
For Petitioner: Michael J. Alderman, Esquire
For Respondent: Barbara K. Sunshine, Esquire
The issue presented is whether the Respondent's motor vehicle dealer license should be revoked.
The parties filed a Stipulation in Lieu of Formal Hearing on April 7, 1993, and joint exhibits on April 13, 1993. The Respondent moved to strike joint exhibit 3a on April 26, 1993. The Department filed its proposed recommended order on April 23, 1993; Respondent filed its proposed recommended order on April 26, 1993. By stipulation of counsel, the attorney for Respondent withdrew on May 4, 1993, and new counsel was substituted. Another copy of Respondent's proposed recommended order was filed on June 18, 1993, by Respondent's new counsel.
Respondent Platinum Motor Cars, Inc. (Platinum), holds an independent motor vehicle dealer license, number VI-17331, issued by the Department.
Joseph A. Camino III was formerly the principal and licensee of an entity known as J & J Auto Sales.
The Department filed two Administrative Complaints against J & J Auto Sales, Case Nos. DMV-88-42 and DMV-90-01. After informal hearings on each of those Complaints, J & J Auto Sales was assessed and subsequently paid civil fines.
No license held by Joseph A. Camino III has ever been revoked by the Department.
Joseph A. Camino III has never been convicted of a crime which resulted in his being prohibited from continuing to hold a motor vehicle dealer license under Section 320.27(9)(s), Florida Statutes.
Lynette Bowman Camino was listed as an officer and director of Platinum Motor Cars, Inc., on the initial application for licensure filed by the corporation.
Lynette Bowman Camino is the wife of Joseph A. Camino, III.
Lynette Bowman Camino has never held a motor vehicle dealer license in her individual name.
Lynette Bowman Camino has never been convicted of a crime which would prohibit her from holding a motor vehicle dealer license under Section 320.27(9)(s), Florida Statutes.
Before the issuance of the license to Platinum, Lynette Bowman Camino withdrew as an officer or director of the corporation.
The Department advised Platinum in a letter dated April 8, 1992, that its application was initially denied for the reasons set forth in that letter.
On April 13, 1992, Michael J. Smith, President of Platinum, executed an affidavit as a condition of the Department's approval of the application for license. The salient portions of that response to the April 8, 1992 denial letter are set out in Finding 22 below.
Joseph A. Camino III is currently employed by Platinum as a motor vehicle buyer and is an authorized agent of Platinum at the Lauderdale-Miami Auto Auction, an auction for dealers and wholesalers.
Joseph G. Camino, father of Joseph A. Camino III, was a co-owner of J & J Auto Sales.
Joseph G. Camino, father of Joseph A. Camino III, has never been associated with Platinum in any capacity.
Joseph A. Camino III was not the licensee, owner or undisclosed principal of International Motor Cars.
At the time of the issuance of Platinum's license, all shares in the Respondent corporation were jointly held by Michael J. Smith and Sandra J. Smith.
To date, the Department has not sent notice to Lynette Bowman Camino individually of any right to request a hearing on the agreement between the Department and Platinum embodied in the April 13, 1992 affidavit of Michael J. Smith. (See Finding 22 below).
To date, the Department has not sent notice to Joseph A. Camino, III individually of any right to request a hearing on the agreement between the Department and Platinum embodied in the April 13, 1992 affidavit of Michael J. Smith. (See Finding 22 below).
The April 8, 1992 letter disclosing the Department's "Intent to Deny License Application" contained a clear point of entry for Platinum giving notice that the applicant could request a Chapter 120 proceeding to contest the Department's expressed intention to deny the license sought.
Joseph A. Camino III as an authorized agent of Platinum, is authorized to transact business, including vehicle sales and purchases, on behalf of the Platinum at Lauderdale-Miami Auto Auction, Inc.
The affidavit executed by Michael J. Smith, President of Platinum (Joint Exhibit 1), contains the following paragraphs:
That as of this date, neither LYNETTE BOWMAN CAMINO, JOSEPH A CAMINO, III, JOSEPH A. CAMINO, JR., nor any other member of said Camino family has any interest or position whatsoever in or with Platinum Motorcars, Inc.
That from this day forward, no member of the aforesaid Camino family shall be involved with Platinum Motorcars, Inc., on a financial management, operational or sales basis.
That affiant acknowledges and understands that if any member of the aforesaid Camino family shall in the future be involved with Platinum Motorcars, Inc., on a financial, management, operational or sales basis, such involvement shall result in the Florida Department of Highway Safety and Motor Vehicles taking administrative action to revoke the license to do business of Platinum Motorcars, Inc.
(underlining added; capitalization and boldface in original)
As the authorized agent for Platinum with the authority to buy and sell vehicles at the Lauderdale-Miami Auto Auction, Joseph A. Camino III is involved with the Respondent on an "operational or sales basis."
Based upon the foregoing Finding, Platinum has breached its undertaking embodied in paragraphs 4 and 5 of the Smith Affidavit set out above in Finding 22.
The authorization of Joseph A. Camino III to act for Platinum contained in Petitioner's Exhibits 1 and 2 is dated April 22, 1992, only nine days after Joint Exhibit 1 (the affidavit quoted in Finding 22) was signed under oath by Platinum's President. Based on this, I infer that the promises set out in paragraphs 4 and 5 of the affidavit were made with no intention of honoring them. The affidavit was executed in bad faith and constitutes a willful misrepresentation made in an attempt to obtain licensure, and to avoid a Section 120.57(1) hearing on the licensure application of Platinum Motor Cars, Inc.
CONCLUSIONS OF LAW
The Hearing Officer has jurisdiction of this matter pursuant to Section 120.57(3), Florida Statutes.
The parties' Stipulation in Lieu of Formal Hearing sets forth 17 disputed questions of law at pages 5 and 6. A number of these questions are interrelated and should be considered together.
The validity of the affidavit/agreement signed under oath by Platinum's President on April 13, 1992 (Joint Exhibit 1), in order to obtain licensure is a threshold issue. Disputed legal issue 1, 3 and 10 attack the validity of or authority for the affidavit/agreement, as set out below:
1. Whether the agreement between the parties as embodied in the April 13, 1992 affidavit of Michael J. Smith is illegal.
3. Whether the Department was acting within its authority under Florida law to require the Respondent to execute the April 13, 1992 affidavit.
10. Whether the affidavit of Michael J. Smith dated April 13, 1992, is authorized by Section 120.57(3), Florida Statutes.
Issues 6 and 7 question the ability of the Respondent to raise these issues:
Whether the Respondent is barred by waiver or equitable estoppel to assert the invalidity of the agreement embodied in the April 13, 1992 affidavit of Michael J. Smith.
Whether the Respondent is barred by waiver or equitable estoppel to assert that Petitioner lacked authority to condition the issuance of its license on the agreement embodied in the April 13, 1992 affidavit of Michael J. Smith.
Issues 6 and 7 will be considered first, because if the Respondent is equitably estopped to raise or has waived these issues, they need not be ruled on.
Equitable estoppel is based on the principle that a person whose language or conduct leads another to do what he otherwise would not do, will not be permitted to cause loss or damage to that person resulting from reasonable reliance on the representations or conduct. The elements of estoppel are:
Words and admissions, or conduct, acts, and acquiescence, or all combined, causing another person to believe in the existence of a certain state of things.
In which the person so speaking, admitting, acting, and acquiescing did so wilfully, culpably, or negligently.
By which such other person is or may be induced to act so as to change his own previous position injuriously. Boynton Beach State Bank v. Wythe, 126 So.2d 283, 285 (Fla. 2nd DCA 1961)
The Department's initial position on the Respondent's license application was to deny the license because of its belief that the officers for Platinum were serving as fronts for the Caminos, who had surrendered their license for J & J Motors, as the license denial letter (Joint Exhibit 2), makes clear. The licensee's conduct in submitting the affidavit of its president in lieu of petitioning for a Section 120.57, Florida Statutes, proceeding on its license denial led the Department to believe that the corporation agreed to the exclusion of the Caminos from the business as a condition for licensing. Platinum and its officers took these actions to obtain its license. The Department was induced to change its position (i.e., to grant the license) by Respondent. In reliance on the representations in the affidavit, and on the making of the affidavit rather than petitioning for a hearing, the Department changed its position and issued a dealer license to Platinum.
The Respondent is estopped to contend that the Department was unauthorized to require the affidavit as a condition of licensing, or that the affidavit was otherwise invalid. There is no proof in the record that the Department required it. All that is shown is that the President of Platinum offered it, and the Department granted the license, with the conditions Platinum offered to avoid a hearing. Platinum cannot have the advantage of its agreement by which it obtained licensure, and also assert the agreement's invalidity when the Department has discovered the licensee's duplicity.
Closely related to the estoppel issue are the issues raised in disputed issues of law 8 and 9, i.e., whether the matters set forth in the license denial letter of April 8, 1992, are res judicata or collaterial estoppel as to this action. They are not. The prior licensure action was settled when the licensee agreed that the Caminos would not be involved with the business. There was no adjudication of any fact in the initial licensure processing which binds Platinum here.
The next disputed legal issues are issues 11, 12, 13, and 14, dealing with whether Lynette Bowman Camino and Joseph A. Camino are substantially affected by the affidavit and whether they have been afforded due process. Before this matter can be considered, however, the issue 17, Respondent's standing to raise these issues, must be resolved.
Standing, under Chapter 120, Florida Statutes, is conferred on persons whose substantial interests will be affected by proposed agency action. Friends
of the Everglades, Inc. v. Board of Trustees of Internal Imp. Trust Fund, 595 So.2d 186 (Fla. 1st DCA 1992). The narrow issue under issue 17 is whether Platinum is substantially affected by any alleged failure to provide due process to the Caminos. Platinum was given a clear point of entry for both the license denial and this license revocation case. In these two proceedings it has had the opportunity to raise all relevant issues with regard to the Department decision not to issue a license to an entity with which the Caminos are involved. Platinum has shown no injury to it as a result of the Department's alleged failure to provide due process to these non-parties. Platinum lacks standing to raise issues 11-14.
The final issues to be resolved before reaching the merits are issues
14 and 15; Platinum seeks to bar the Department from offering evidence of J & J Motors' consumer complaints. Aside from the denial letter of April 8, 1992, and stipulation concerning the final orders entered disciplining J & J Motors, the Department has offered no evidence of consumer complaints.
The remaining stipulated issues of law 2, 4 and 5, go to the merits of the Department's case against Platinum, and are essentially the same as the allegations set out in Section II, "Statutes and Rules Violated" in the Administrative Complaint dated October 26, 1992. Allegation 4 charges a violation of Section 320.27(9)(p), Florida Statutes, "use of a dealer license identification number by any person other than the licensed dealer or his designee." Stipulated legal issue 5 asks whether Joseph A. Camino, III is the Respondent's designee under Section 320.27(9)(p), Florida Statutes. Taking the word in its usual sense as meaning "one who has been designated" based on stipulated fact 13 and on the Department's Exhibits 1 and 2, Mr. Camino is Platinum's designee. Platinum did not violate Section 320.27(9)(p).
Allegation 1 under "Statutes and Rules Violated" in the administrative complaint charges Platinum with "commission of fraud or willful misrepresentation in making an application for or in obtaining a license" in violation of Section 320.27(9)(b), Florida Statutes. Disputed Question of Law 2 in the stipulation is related to this allegation: "whether the April 13, 1992 affidavit of Michael J. Smith is part of the Respondent's application for license under Fla. Stat. Section 320.27(3) within the meaning of Fla. Stat. Section 320.27(9)(b)."
Platinum appears to argue that the applicant may mislead the Department as long as the information set out in the application form itself is literally true. This is a untenable construction which would undermine the very purpose of the licensure program established in Section 320.605, Florida Statutes. Moreover, this construction is inconsistent with the text of Section 320.27(9)(b), Florida Statutes, which forbids fraud and misrepresentation "in obtaining a license." Stipulated Fact 12 states that Platinum executed the affidavit "as a condition of the Department's approval of his application for a license." The affidavit was submitted in obtaining the motor vehicle dealer license, and if it is fraudulent or contains a willful misrepresentation, Platinum has violated Section 320.27(9)(b), Florida Statutes.
A party who makes a promise without any intention to perform it, to induce another to enter into a transaction, is guilty of fraud. Day v. Weadock,
101 Fla. 333, 134 So. 525 (1931); Home Seekers' Realty Co. v. Menear, 102 Fla. 7, 135 So. 402 (1931); Bernard Marko & Associates, Inc. v. Steele, 230 So.2d 42 (Fla. 3rd DCA 1970). Platinum's President made the affidavit with no intention of honoring the promises contained in it. See Finding 25 above. The affidavit
is a willful misrepresentation for the same reason. Based on these facts, Platinum violated Section 320.27(9)(b), Florida Statutes.
The Department has also charged Platinum with perpetration of a fraud upon the Department as a result of dealing in motor vehicles, in violation of Section 320.27(9)(c), Florida Statutes. As set forth in Finding 25 above, Platinum obtained its license fraudulently, accepting the condition Platinum offered of not employing Joseph A. Camino III without the intention of complying with that restriction. Platinum's President knew the Department would take the licensure matter to a final hearing if anyone associated with J & J Motors participated in the operation of Platinum, but Platinum employed Camino and continues to employ him (see Finding 13). This is not, however, a fraud in dealing with motor vehicles. The Department has neither bought nor attempted to buy a motor vehicle through Mr. Camino, nor has it alleged any current misconduct by Mr. Camino in any action taken as agent for Platinum. Platinum has not violated Section 320.27(9)(c), Florida Statutes.
Paragraph 3 of the "Statutes and Rules Violated" charges Platinum with "failure to continually meet the requirements of the licensure law," in violation of Section 320.27(9)(r), Florida Statutes. By employing Joseph A. Camino, Platinum has violated the conditions under which its license was issued. As discussed above, Platinum is estopped to contend that these conditions were unlawful, or invalid; therefore, the conditions were requirements imposed under the licensure law and failure to meet them is a violation of Section 320.27(9)(r), Florida Statutes.
Having determined that Platinum violated Section 320.27(9)(b) and (r), raises the question whether these violations will support the revocation of the Respondent's license which the Department seeks. Platinum has already acknowledged in paragraph 5 of the affidavit that the Department would revoke its license if it employs any member of the Camino family. Even absent such an agreement, the duplicity in obtaining the license is sufficient to support a revocation under Section 320.27(9), Florida Statutes.
The Section 320.27(9), Florida Statutes, provides that a motor vehicle dealer license may be revoked or suspended when the "licensee has failed to comply with any of [these] provisions with sufficient frequency so as to establish a pattern of wrongdoing on the part of the licensee." As a condition of its licensure, Platinum made a promise not to employ certain persons. Only nine days later, one of these persons was employed by Platinum and remains employed to this day. The violations, therefore, are continuing violations, and establish a pattern of wrongdoing sufficient to support revocation of Platinum's license under Section 320.27(9), Florida Statutes. Any result other than revocation would allow motor vehicles dealers to obtain a license by fraud, or to fail to meet a condition of the licensing law, and remain licensed. This would be inconsistent with the legislative intent to protect the public welfare as expressed in Section 320.605, Florida Statutes.
Based upon the foregoing, it is RECOMMENDED that the Department enter a final order revoking the Respondent's motor vehicle dealer license.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of July 1993.
WILLIAM R. DORSEY, JR.
Filed with the Clerk of the Division of Administrative Hearings this 9th day of July 1993.
Michael J. Alderman, Esquire Department of Highway Safety
Barbara K. Sunshine, Esquire 2395 Davie Boulevard
Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety
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.
