STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1885

)

DEBRA ANN VALLANCOURT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on September 8, 1993, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Henri C. Cawthon, Esquire

Assistant General Counsel Department of State Division of Licensing

The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250

For Respondent: Debra Ann Vallancourt (pro se)

Post Office Box 269

Apopka, Florida 32712-0269 STATEMENT OF THE ISSUES

Whether Respondent conducted or advertised the business of a recovery agency without a valid license, during the period of October 1, 1992 to December 22, 1992, in violation of Section 493.6118(1)(g), Florida Statutes.

PRELIMINARY STATEMENT

On January 22, 1993, Petitioner filed a one count Administrative Complaint charging Respondent with certain violations of Chapter 493, Florida Statutes.

Respondent denied the allegations and requested a formal hearing. This matter was referred to the Division of Administrative Hearings for formal hearing on April 1, 1993. Following discovery, this matter was heard on September 8, 1993.

At the hearing, Petitioner called five witnesses to testify, and two exhibits were admitted in evidence. Respondent testified in her own behalf and offered no exhibits. The transcript of the proceedings was filed with the Clerk of the Division on September 24, 1993. Petitioner filed proposed findings of

fact and conclusions of law on October 6, 1993. Respondent has not filed proposed findings as of the date of this order. My specific rulings on the proposed findings are contained in the Appendix attached hereto.

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

FINDINGS OF FACT

1. Respondent, Debra Ann Vallancourt, was issued a Class "EE" Recovery Agent Intern License on August 12, 1992.

   
   

2. Respondent has never held a Class "R" Recovery Agency License or a Class "E" Recovery Agent License.

   
   

3. June MacWithey, who holds a Class "R" Recovery Agency License and a Class "E" Recovery Agent License, sponsored Respondent's internship beginning in April, 1992. Prior to that time, Respondent was sponsored under the Class "E" License of Septhanie MacWithey, one of June MacWithey's employees.

   
   

4. The name of June MacWithey's recovery agency is Collateral Collection Corporation. The name was changed in February, 1993. The former name of the corporation was Midnight Auto Adjusters.

   
   

5. In November, 1992, June MacWithey formally terminated her sponsorship of Respondent.

   
   

6. At approximately the same time, Steve MacWithey had a conversation with Respondent regarding complaints made against her for allegedly contracting to perform repossessions without her sponsor's knowledge or permission. However, it is not clear whether she was informed at that time that her internship was being terminated.

   
   

7. Steve MacWithey, June's husband, is a Class "EE" Recovery Agent Intern, and one of June's employees.

   
   

8. Charles Mason is the manager of Auto Sports Center, Inc., in Apopka, Florida.

   
   

9. In late summer, 1992, Sharon Landis introduced Respondent to Mason as a licensed repossessor. He hired Respondent to perform repossessions as an independent contractor, and paid her by check made payable to Debbie Vallancourt.

   
   

10. He eventually hired Respondent as an employee in March or April of 1993.

    
    

11. Respondent repossessed approximately 30-35 cars for Mr. Mason between October, 1992 and January, 1993.

    
    

12. Respondent never advised Mason that she was working for Midnight Auto Adjusters or Collateral Collection Corporation. However, she would on occasion perform repossessions with Steve MacWithey who would pick her up at Mason's car lot.

13. Some of the repossessions Respondent performed for Mason, between October and December, 1992, were done without the knowledge of her sponsor June MacWithey, and on some of the repossessions performed for Mason, Respondent would cash her check and split the money with Steve MacWithey, bypassing her sponsor.

    
    

14. George Namlik, Sr. owns a used car dealership in Apopka, Florida.

    
    

15. In early November, 1992, Respondent solicited Namlik for the purpose of performing repossessions for his dealership. She indicated to him that she was licensed to perform repossessions. She showed him her Class "EE" Recovery Agent Intern License, which he made a copy of, and told him that another license was in the mail.

    
    

16. Next to the photocopy of the Class "EE" license, Respondent wrote her office number, her digital beeper number, and her quoted price for each repossession.

    
    

17. Respondent did not tell Mr. Namlik that she was working with anyone else, and led him to believe that she had the necessary licenses to work as an independent contractor.

    
    

18. Namlik assigned her two repossessions which she never completed. She returned the car keys to Namlik following numerous requests and his threat to complain to the Department of State, Division of Licensing.

    
    

19. June MacWithey did not properly supervise and direct the activities of Respondent.

    
    

20. Between October and December, 1992, Respondent solicited and performed repossessions independent of, and without the knowledge of, her sponsor. Petitioner's explanation for this conduct is not credible.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

22. Section 493.6118(1)(g), Florida Statutes, states in pertinent part: 493.6118 Grounds for disciplinary action.

    1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any licensee, agency, or applicant regulated by this chapter, or any unlicensed person engaged in activities regulated under this chapter.

       * * *

       (g) Conducting activities regulated under this chapter without a license or with a revoked or suspended license.

       * * *

    2. When the department finds any violation of subsection (1), it may do one or more of the following:

       1. Deny an initial or renewal application for license.

       2. Issue a reprimand.

       3. Impose an administrative fine not to exceed $1,000 for every count or separate offense.

       4. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

       5. Suspend or revoke a license.

          
          

23. An internship under Chapter 493 is described as follows:

    
    

    1. Only licensees may sponsor interns.

       * * *

       (3) Internship is intended to serve as a learning process. Sponsors shall assume a training status by providing direction and control of interns. Sponsors shall only sponsor interns whose place of business is within a 50-mile distance of the sponsor's place of business and shall not allow interns to operate independently of such direction and control, or require interns to perform activities which do not enhance the intern's qualification for licensure.

       
       

       Section 493.6116(3), Florida Statutes."

24. The word "advertising" is defined in Chapter 493 as follows: Advertising" means the submission of bids,

    contracting, or making known by an public notice or solicitation of business, directly or indirectly, that services regulated under this chapter are available for consideration.

    
    

    Section 493.6101(6), Florida Statutes."

    
    

25. Respondent is in violation of Section 493.6118(1)(g), Florida Statutes, and Rule 1C-3.122(1), Florida Administrative Code, in that she conducted or advertised the business of a recovery agency without a valid Class "R" Recovery Agency License.

    
    

26. The evidence is clear that Respondent was advertising her services to Mr. Mason and Mr. Namlik as an independent contractor and not on behalf of her sponsor's agency.

    
    

27. There is clear and convincing evidence that Respondent was working independently and outside the direction and control of June MacWithey. Respondent and Steve MacWithey conspired to keep monies received from Charles Mason without June MacWithey's knowledge. The fact that Steve MacWithey was an accomplice to some of these activities does not make Respondent any less culpable.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found GUILTY of violating Sections

493.6118(1)(g) and receive a written reprimand and pay an administrative fine in the amount of One Thousand Dollars ($1,000).

DONE and ENTERED this 13th day of October, 1993, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 13th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1885

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 of fact. Accepted in substance: paragraphs 1-19

Respondent's proposed findings of fact. Respondent did not submit proposed findings.

COPIES FURNISHED:

Henri C. Cawthon, Esquire Department of State Division of Licensing

The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250

Debra Ann Vallancourt (pro se) Post Office Box 269

Apopka, Florida 32712-0269

Honorable Jim Smith Secretary of State The Capitol

Tallahassee, Florida 32399-0250

Phyllis Slater General Counsel Department of State The Capitol, PL-02

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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: 93-001885

Orders for Case No: 93-001885