STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARVEY G. RINIER, d/b/a YESTERDAYS ) and TODAYS AUTO SALES, )

)

Petitioner, )

)

vs. ) Case No. 96-4454

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

MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in St. Petersburg Beach, Florida, on August 8, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John L. Waller, Esquire

467 Second Avenue, North

St. Petersburg, Florida 33701

For Respondent: Gabrielle L. A. Taylor, Esquire

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Room A-432

Tallahassee, Florida 32399-0504

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Petitioner should be licensed as an independent motor vehicle dealer in Florida.

PRELIMINARY MATTERS

By letter dated August 28, 1996, T. N. Prakash, administrator in the dealer license section of the Department of Highway Safety and Motor Vehicles' Division of Motor Vehicles, advised Petitioner, Harvey G. Rinier, that his application for a dealer's license as an independent motor vehicle dealer at 2401 Central Avenue in St. Petersburg, had been denied for cause.

Through counsel, Petitioner thereafter requested formal hearing on the denial action, and, after several continuances, this hearing ensued.

No witnesses were called to testify by either party, nor was any documentary evidence submitted. Instead, counsel for the parties read into the record their stipulation as to the material facts of the case and thereafter indicated they would submit memoranda of law and argument in writing.

No transcript of the proceedings was furnished. Both counsel submitted post-hearing argument and legal authorities which have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. By stipulation of fact, the parties agreed:

   
   

   1. Petitioner applied for a motor vehicle dealer's license for a dealership to be operated at 2401 Central Avenue in

      St. Petersburg, Florida.

      
      

   2. The application was denied by the Department because it appears the applicant has no experience in the motor vehicle

      business and, in fact, applied for the license to allow an individual by the name of Lloyd Blocker to operate and have continued involvement in the motor vehicle business.

      
      

   3. Petitioner was aware at the time of his application that Mr. Blocker had been denied a motor vehicle license in Florida in February 1994 and had been convicted of a felony in Alaska involving the unlawful rolling back of odometers in motor vehicles.

      
      

   4. In addition, Mr. Rinier was aware that the Department of Motor Vehicles would not allow Mr. Blocker to hold a license to deal in motor vehicles in Florida.

      
      

   5. Mr. Rinier and Mr. Blocker have an ongoing business dealing with the sale of motor vehicles. Mr. Rinier knows and knew at all times pertinent hereto that Mr. Blocker could not operate such a business on his own.

      
      

   6. The Department of Motor Vehicles contends that Mr. Blocker cannot operate or be involved in any facet of the motor vehicle business in any capacity. If Mr. Rinier were to provide written assurances that

      Mr. Blocker would not be involved in any way with a business operated under a license if issued, it would issue a license, assuming Mr. Rinier were otherwise qualified for licensure.

      
      

   7. Mr. Rinier is unwilling to provide that assurance in writing. However, Petitioner contends his sole desire is to make money from the operation of a dealership. If the license were issued, ownership of the business would be and remain in the Petitioner's name. He had already paid lease costs and all other costs relating to the business, and he will not operate it without Mr. Blocker's participation in some form. The present relationship with

      Mr. Blocker involves sale of the buildings where the dealership would operate.

      CONCLUSIONS OF LAW

      
      

2. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

3. The Department has declined to issue a license to Petitioner to operate a motor vehicle dealership in this state on the basis that Petitioner has indicated his intent to have Lloyd Blocker, an individual denied licensure in Florida because of prior misconduct in the motor vehicle business, as a participant in the licensed business with him.

4. Section 320.27(9), Florida Statutes, outlines the bases for denying, suspending, or revoking a motor vehicle license. Included within these is subsection (q), which permits the denial of a license to anyone convicted of a felony, and subsection(s). This latter provision states:

   When a motor vehicle dealer is convicted of a crime which results in his or her being prohibited from continuing in that capacity, the dealer may not continue in any capacity within the industry. The offender shall have no financial interest, management, sales, or other role in the operation of a dealership. Further, the offender may not derive income from the dealership beyond reasonable compensation for his or her ownership interest in the business.

5. It is clear that Section 320.27(9)(q) permits the Department to deny licensure to anyone convicted of a felony. In fact, based upon his conviction, the Department previously denied a license to Mr. Blocker. However, Petitioner has not been

   convicted of a felony, and he obviously cannot be denied on that basis.

6. The fundamental issue here is whether the Department can prospectively deny a license to Mr. Rinier, who has no independent disqualification for licensure, on the basis that he intends to use Mr. Blocker, clearly disqualified from participation in the business by the provisions of subsection 320.27(9)(s), as an associate in the dealership.

7. The Department has clearly stated its willingness to issue a license to the Petitioner if he will give assurances in writing that Mr. Blocker will not be involved in any way with the business. Petitioner has indicated his unwillingness to give those assurances. (See paragraphs f. and g. of the parties' stipulation.) Instead, Petitioner has stated only that he will control the business and all business practices will meet with his, Petitioner's moral and ethical standards.

8. This is, however, insufficient, because Petitioner has also asserted in paragraph g. of the stipulation that his sole desire is to make money from the dealership and that Mr. Blocker will participate in it in some fashion. Further, in paragraph b., Petitioner admits he applied for the license to allow Blocker to have continued involvement in the motor vehicle business.

9. It is clear from a reading of the pertinent statute that the intent of the legislature was to preclude individuals with disqualification such as that demonstrated by Mr. Blocker from

participating in the motor vehicle business. While Section 320.27(9)(s), Florida Statutes, does not specifically state that an applicant for a license may be denied for hiring, or showing clear intent to hire, an otherwise disqualified individual, that is the only reasonable interpretation of the provision. The provision clearly indicates that a dealer who has been convicted of a crime which results in his being prohibited from continuing in that capacity may not continue in any capacity in the industry. If, as here, an applicant demonstrates without question that he intends to aid or assist the disqualified dealer in circumventing the statutory prohibition, that intention constitutes sufficient grounds to deny licensure to the applicant.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Highway Safety and Motor Vehicles enter a Final Order denying a motor vehicle dealer license to Petitioner, Harvey G. Rinier.

DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

John L. Waller, Esquire John L. Waller, P.A.

467 Second Avenue, North

_ ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997.

St. Petersburg, Florida 33701

Michael J. Alderman, Esquire Gabrielle L. A. Taylor, Esquire Department of Highway Safety

and Motor Vehicles Neil Kirkman Building, Room A-432

Tallahassee, Florida 32399-0504

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

Room B-439

Tallahassee, Florida 32399-0500

Enoch Jon Whitney General Counsel

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004454

Orders for Case No: 96-004454