STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DAB, INC., d/b/a STUART MOTORS; ) JACK A. BOWSHIER, SR.; and JACK D. ) BOWSHIER, JR., )
)
Petitioners, )
)
vs. ) Case No. 96-4970
) DEPARTMENT OF BANKING AND FINANCE, ) DIVISION OF FINANCE, )
)
Respondent. )
) WPAS, INC., d/b/a PALM BEACH ) MOTORS; JACK A BOWSHIER, SR.; and ) JACK D. BOWSHIER, JR., )
)
Petitioners, )
)
vs. ) Case No. 96-4971
) DEPARTMENT OF BANKING AND FINANCE, ) DIVISION OF FINANCE, )
)
Respondent. )
) DEPARTMENT OF BANKING AND FINANCE, ) DIVISION OF FINANCE, )
)
Petitioner, )
)
vs. ) Case No. 96-5525
) WPAS, INC., d/b/a PALM BEACH ) MOTORS; DAB, INC., d/b/a STUART ) MOTORS; JACK A. BOWSHIER; )
JACK D. BOWSHIER; and TODD )
BOWSHIER, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a Section 120.57(1) hearing was held in these consolidated cases on February 5 and 6, 1998, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For the Department of Banking and Finance, Division of Finance:
Kevin Rosen
Assistant General Counsel Office of the Comptroller
110 Southeast Sixth Street, Suite 1400 Fort Lauderdale, Florida 33301-5000
For DAB, Inc.; WPAS, Inc.; Jack A. Bowshier, Sr.; Jack D. Bowshier, Jr.; and Todd Bowshier:
U. Timothy Juergens, Esquire
200 North Fountain Avenue Springfield, Ohio 45504
STATEMENT OF THE ISSUES
1. Whether the applications which are the subjects of DOAH Case Nos. 96-4970 and 96-4971 should be granted.
2a. Whether the respondents in DOAH Case No. 96-5525 committed the violations alleged in the Amended Administrative Complaint issued in that case.
2b. If so, what sanctions should be imposed.
PRELIMINARY STATEMENT
By letter mailed on July 19, 1996, the Department of Banking and Finance, Division of Finance (Department) notified WPAS, Inc. (WPAS) of its intention to deny WPAS's Application for a Motor Vehicle Installment Seller License. On August 12, 1996, WPAS filed with the Department a Petition for Formal Hearing on the matter. By letter mailed October 1, 1996, the Department advised DAB, Inc. (DAB) of its intention to deny DAB's Application for a Motor Vehicle Installment Seller License. On October 11, 1996, DAB filed with the Department a Petition for Formal Hearing on the matter. Both WPAS and DAB argued in their Petitions for Formal Hearing that the denial of their applications would be contrary to the provisions of the Final Order entered in the Department's Administrative Proceeding Nos. 4287-F-11/95, 4287a- F-11/95, and 4287b-F-11/95, which adopted the Stipulation for Settlement and Consent to Final Order executed by the parties in those administrative proceedings. On October 23, 1996, the Department referred WPAS's and DAB's Petitions for Formal Hearing to the Division of Administrative Hearings (Division). The petitions were docketed as DOAH Case No 96-4970 (DAB's petition) and DOAH Case No 96-4971 (WPAS's petition).
On October 16, 1996, the Department filed an Administrative Complaint for Imposition of Sanctions against WPAS; DAB; Jack A. Bowshier, Sr.; Jack D. Bowshier, Jr.; and Todd Bowshier (hereinafter referred to collectively as the "Bowshiers"). On or
about November 4, 1996, the Bowshiers filed a Petition for Formal Hearing on the allegations made in the Administrative Complaint for Imposition of Sanctions. The matter was referred to the Division on November 19, 1996, and docketed as DOAH Case No. 96- 5525.
At the request of the parties, DOAH Case Nos. 96-4970, 96- 4971, and 96-5525 were consolidated and a Section 120.57(1) hearing in these consolidated cases was scheduled to commence on March 11, 1997. The hearing, however, was continued on several occasions and did not commence until February 5, 1998.
On December 10, 1997, prior to the commencement of the hearing, the Department filed in these consolidated cases a Motion for Leave to Amend Notices of Intent to Deny Applications for Motor Vehicle Retail Installment Seller License and to Amend Administrative Complaint for Imposition of Sanctions. By order issued December 22, 1997, the undersigned (citing Key Biscayne Council v. Department of Natural Resources, 579 So. 2d 293, 295 (Fla. 3d DCA 1991)) granted the motion.
The Notices of Intent to Deny Applications for Motor Vehicle Retail Installment Seller License, as amended, allege that the WPAS's and DAB's applications "may be denied pursuant to Sections 520.995(1)(a), 520.995(1)(b), 520.995(1)(d), 520.995(2)(a),
520.995(3)(b), 520.995(3)(d), and 520.995(4), Florida Statutes." The Administrative Complaint for Imposition of Sanctions, as amended, alleges that the Bowshiers "engaged in the business of a
motor vehicle retail installment seller without a license, in violation of Sections 520.03(1) and 520.995(1)(a), Florida Statutes"; that they "charged usurious interest rates in retail installment transactions, in violation of Section 687.03(1), Florida Statutes"; and that they "willfully imposed illegal or excessive charges in retail installment transactions, in violation of Section 520.995(1)(d), Florida Statutes." Furthermore, it puts the Bowshiers on notice that among the potential penalties the Department may impose on them is "a fine in an amount not exceeding $1,000 for each count or separate offense."
At the final hearing held in these consolidated cases on February 5 and 6, 1998, nine witnesses testified: Henry Nagel; Christine Casale; John Willard; Brenda Liberti; Thomas Froeba; Michael Botos, Esquire; William Chamberlain; Diane Leeds, Esquire; and Jack A. Bowshier, Sr. In addition, 62 exhibits (Department's Exhibits 1 through 35 and Bowshiers' Exhibits 1, 2,
4 through 7, 9 through 15 and 17 through 30) were received into evidence.
At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, advised that the deadline for the filing of proposed recommended orders was 60 days from the date of the Division's receipt of the transcript of the hearing. The hearing transcript was filed with the Division on March 17, 1998. The Department and the Bowshiers filed their proposed recommended
orders on May 11, 1998. These post-hearing submittals have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:
The Department is a state government licensing and regulatory agency, which, among other things issues motor vehicle retail installment seller (MVRIS) licenses.
Jack Bowshier Buick-Pontiac-GMC Trucks, Inc. (Bowshier Buick) is a corporation organized under the laws of the State of Florida.
Bowshier Buick formerly operated an automobile dealership at 2445 Southeast Federal Highway in Stuart, Florida, and held a MVRIS license issued by the Department.
At all times material to the instant cases, Jack A. Bowshier, Sr., in his capacity as owner/director/president, and Jack D. Bowshier, Jr., in his capacity as general manager/director, exercised control over the policies and practices of Bowshier Buick.
On or about October 25, 1995, the Department began an investigation into the business affairs of Bowshier Buick.
The Department's investigation revealed, among other things, that Bowshier Buick engaged in the practice of reselling "trade-ins" without timely satisfying the existing liens on the vehicles. Such practice, which was the product of cash flow
problems the dealership was experiencing, adversely affected the credit ratings of those who had "traded-in" these vehicles and prevented the ultimate purchasers of the vehicles from timely obtaining new certificates of title.
In the "deal jackets" that the dealership created to place the paperwork relating to the transactions involving these "traded-in" vehicles, the Department's investigators found copies of checks which were made payable to those who held the liens on these "trade-in" vehicles. The investigators subsequently discovered, however, that these checks had not been timely sent to the lienholders, but instead had been placed in the desk drawer of the dealership's office manager, Christine Casale.
On several occasions, when customers who had "traded-in" vehicles complained to the dealership that the liens on their vehicles had not been satisfied, they were told by Casale that the checks to satisfy the liens had been mailed to the lienholders, when in fact they had not been. Such misrepresentations were made in an effort to mislead and deceive these complaining customers. In making these fraudulent misrepresentations, Casale acted pursuant to instructions that had been given to her by Jack A. Bowshier, Sr., and Jack D. Bowshier, Jr.
On November 3, 1995, the Department issued an Emergency Immediate Temporary Final Order to Cease and Desist and Suspension of [Bowshier Buick's] Motor Vehicle Retail Installment
Seller's License (Emergency Order) in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195. Bowshier
Buick, Jack A. Bowshier, Sr., and Jack D. Bowshier, Jr., were named as respondents in the Emergency Order. The Department alleged in the Emergency Order that they had
committed the following violations of the law for which they are subject to the penalties as set forth in Section 520.995, Florida Statutes:
Violation of Section 520.995(1)(b), Florida Statutes, in that they have perpetrated fraud, misrepresentation, deceit, or gross negligence in retail installment transactions, regardless of reliance by or damage to the buyer.
Violation of Section 520.995(1)(b), Florida Statutes, in that they have committed criminal conduct in the course of their Motor Vehicle Retail Installment Sellers business.
Violation of Section 520.995(3)(d), Florida Statutes, in that they have demonstrated a lack of financial responsibility.
On November 13, 1995, an Administrative Complaint for Imposition of Sanctions was filed against Bowshier Buick, Jack A. Bowshier, Sr., and Jack D. Bowshier, Jr.
Jack A. Bowshier, Sr., subsequently engaged in negotiations with William Chamberlain, the owner and president of WAFC Holdings, Inc. (WAFC) concerning the sale of the assets of Bowshier Buick to WAFC in return for, among other things, the assets of two Chamberlain-owned corporations, South Florida Auto Exchange, Inc., d/b/a Palm Beach Motors, and Stuart Motors, Inc.,
d/b/a Stuart Motors, that were in the business of selling pre- owned motor vehicles in the West Palm Beach and Stuart areas, respectively.
On December 5, 1995, Jack A. Bowshier, Sr., and Chamberlain signed paperwork (Sale/Purchase Agreements) in which their corporations agreed to consummate such a transaction.
On that same date, they also, on behalf of their corporations, executed Interim Management Agreements, pursuant to which WAFC took over the management of Bowshier Buick's dealership at 2445 Southeast Federal Highway in Stuart and Bowshier Buick assumed responsibility for the management of Palm Beach Motors and Stuart Motors, effective December 5, 1995.
Later that month, WPAS, Inc. (WPAS) and DAB, Inc. (DAB) were formed.
At all times material to the instant case, Jack A. Bowshier, Sr., has been the sole owner, president and director of WPAS, and, as such, has directed the operations of the corporation.
At all times material to the instant case, WPAS maintained its principal place of business at 2815 Okeechobee Boulevard in West Palm Beach, the location of Palm Beach Motors.
At all times material to the instant case, Jack D. Bowshier, Jr., was the general manager of Palm Beach Motors.
At all times material to the instant case, Jack A. Bowshier, Sr., has been the sole owner, president and director of DAB, and, as such, has directed the operations of the corporation
At all times material to the instant case, DAB has maintained its principal place of business at 2695 Southeast Federal Highway in Stuart, the location of Stuart Motors.
At all times material to the instant case, Todd Bowshier, has been the general manager of Stuart Motors.
A Stipulation for Settlement and Consent to Final Order in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195 (Stipulation) was executed by Jack A. Bowshier, Sr., on behalf of Bowshier Buick and on his own behalf, and by Jack D. Bowshier, Jr., on January 31, 1996, and by Thomas Stouffer, the Regional Director of the Department's Southeast Florida Regional Office, on behalf of the Department, on February 2, 1996. It provided as follows:
The State of Florida, Department of Banking and Finance, Division of Finance (hereinafter "Department"), and Respondents Jack Bowshier Buick-Pontiac-GMC Trucks, Inc. (hereinafter "Bowshier Buick"), Jack A. Bowshier (hereinafter "JA Bowshier"), and Jack D. Bowshier (hereinafter "JD Bowshier"), in consideration of the mutual promises herein contained and other good and valuable consideration hereby agree to enter into this Stipulation for Settlement and Consent to Final Order as follows:
At all times material hereto Bowshier Buick has been a Florida corporation with its principal place of business located at 2445 SE Federal Highway, Stuart, FL 34994. On or about December 25, 1988 Bowshier Buick was
issued a Motor Vehicle Retail Installment Seller's License by the Department, which remains active to date.
At all times material hereto JA Bowshier has been a Director, owner and control person of Bowshier Buick. In these capacities JA Bowshier creates, controls, formulates, directs and personally participates in the acts, practices and affairs of Bowshier Buick.
At all times material hereto JD Bowshier has been a Director and General Manager of Bowshier Buick. In these capacities JD Bowshier creates, controls, formulates, directs and personally participates in the acts, practices and affairs of Bowshier Buick.
On or about October 25, 1995, the Department received information that it believed indicated that Bowshier Buick had accepted motor vehicles as "trade-ins" and resold these vehicles without first satisfying their existing liens. The Department was concerned that purchasers of these motor vehicles could not be issued Certificates of Title.
As a result of this information, Department examiners/investigators, on three occasions, visited Bowshier Buick's principal office pursuant to Section 520.996, Florida Statutes. They concluded that Bowshier Buick was engaging in acts and/or practices constituting violations of Chapter 520, Florida Statutes.
On November 3, 1995, the Department filed an Emergency Immediate Temporary Final Order to Cease and Desist and Suspension of Motor Vehicle Retail Installment Seller's License (hereinafter "Emergency Order") which was followed, on November 13, 1995, with an Administrative Complaint for Imposition of Sanctions and Notice of Rights (hereinafter "Complaint").
Respondents agree that they have been duly served with both the Emergency Order and Complaint and that the Department has jurisdiction over them and this case.
The Department agrees that Respondents timely filed their Answer, Affirmative Defenses and Petition for Formal Proceedings in response to the Complaint.
The Department herein makes the following findings of fact, upon which the penalties imposed are based, but which findings Respondents neither admit nor deny:
There were approximately thirty trade-ins taken by Bowshier Buick for which the dealership had not satisfied existing liens. Some of these vehicles were resold without first satisfying their existing liens.
Some customers who traded in their motor vehicles suffered adverse credit ratings because of the failure of Bowshier Buick to pay off the existing lienholders.
Bowshier Buick was experiencing severe cash flow problems. For the month of September, Bowshier Buick incurred a monthly bank charge of $5,000 for dealership bank overdrafts. A total estimated amount of
$125,000 in outstanding insufficient funds checks was evident as of November, 1995.
Bowshier Buick did not remit premiums collected to the insurance company for credit life, accident & health insurance policies which had been purchased by Bowshier Buick customers. They had not forwarded said premiums for policies purchased by customers since January, 1995.
Bowshier Buick records were misleading in that copies of checks made payable to lienholders and in the amount due to satisfy liens were contained within the files for months, when the checks were never delivered and/or funds were never disbursed to the payee.
Respondents maintain that subsequent to the Department's filing of its Emergency Order, Bowshier Buick has cooperated with the Department to resolve the lien, title, and premium problems.
In an effort to avoid litigation and costs associated therewith, the Department and Respondents now voluntarily agree to enter into this Stipulation for Settlement and Consent to Final Order (hereinafter "Stipulation") addressing the violations raised by the Emergency Order and the Complaint. The Respondents and the Department agree as follows:
Respondents will bring and keep all books and records up to date and maintain them accurately and in compliance with the law.
Respondents will maintain and keep current all forms required by the automobile dealer's manual, Department of Motor Vehicles and the Department, including the title log.
Respondents will keep all title work and registrations current and in compliance with the law.
Respondents will write any and all insurance policies and remit all premiums in compliance with the law, including but not limited to credit life, accident and health insurance.
Respondents will dismiss with prejudice any and all actions pending in Circuit Court and the District Court of Appeal, not file any further actions in any court which in any fashion or respect arise or tend to arise out of the facts presented by the Emergency Order or the Complaint (see paragraph 6 herein) and, indemnify and hold the Department harmless if such further actions are filed.
Respondents shall, within 30 days from the date of execution of this stipulation, reimburse any and all customers who made payment(s) on past due liens which they did not owe. Within 45 days, verifiable proof of
reimbursement shall be provided to the Department.
Respondent shall, within 90 days from the date of execution of this stipulation, assist any and all customers who have been affected by Respondents untimely payment of liens in repairing their credit. Their assistance shall include, but shall not be limited to, sending letters to lenders wherein Respondents assume all responsibility for the late lien payments. Within 105 days, verifiable proof of such assistance shall be provided to the Department.
Respondents shall, within 30 days from the date of execution of this stipulation, reimburse any and all customers due refunds on credit life, accident and health insurance. Within 45 days, verifiable proof of such assistance shall be provided to the Department.
Respondents shall, immediately upon execution of this stipulation, pay off any and all outstanding past due customer liens, as well as all liens that have been improperly levied upon customers. Upon repayment, verifiable proof thereof shall be provided to the Department.
Respondents shall operate the dealership, at all times in compliance with the law.
Respondents shall pay to the Department by cashiers check, within 30 days of the date of execution of this stipulation, $5,000, representing costs of the Department's examination/investigation in this case.
Respondents agree to sell Bowshier Buick to WAFC Holdings, Inc., its agents, nominees or assigns. If the sale is cancelled or not consummated within 6 months from the date of the Final Order herein, for any reason:
1.) Respondents will immediately notify the Department, Diane Leeds, Esq., in writing via certified mail, return receipt requested, of that fact.
2.) Respondents' Departmental license(s) shall be placed upon and remain on probation for a period of three (3) years, commencing on the date the sale is cancelled or not consummated. For the duration of the probationary period, Respondents agree to:
Provide the Department, on a monthly basis, prior to the 10th day of each month, a copy of the dealership "finance log" attached hereto and made a part hereof as Exhibit "A."
Allow the Department to make unannounced visits to the dealership, as frequently as the Department deems necessary, to assure that Respondents are operating in compliance with the law.
Prior to the termination of the probationary period the dealership shall have, in reserve, a minimum of three (3) weeks supply of operating capital, to be computed based upon the operating expenses of the dealership at that time, and provide verifiable proof thereof to the Department.
The Final Order incorporating the terms of this stipulation constitutes final agency action by the Department for which the Department may seek enforcement pursuant to the provisions of Chapters 120 and 520, Florida Statutes, and Respondents knowingly and voluntarily agree to waive any right to:
1. A formal hearing; 2. To contest the finality of the Final Order; 3. To contest the validity of any term, condition, obligation or duty created hereby; 4. To separately stated Findings of Fact and Conclusions of Law; and 5. To administrative or judicial review hereof.
Respondents acknowledge, concur and stipulate that their failure to comply with any of the terms, obligations and conditions of this stipulation and the Final Order adopting it, shall result in their being deemed to be in violation of a written agreement and Final Order issued pursuant to the provisions of Chapters 120 and 520,
Florida Statutes, and Respondents stipulate and agree to the issuance of an emergency suspension of their license(s) and a cease and desist order. Respondents waive all rights to prior notice and hearing before entry of such order. However, nothing herein limits Respondents' right to contest any finding or determination made by the Department concerning their alleged failure to comply with any of the terms and provisions of this stipulation or of the Final Order.
Respondents waive and release the Department and its agents, representatives, and employees from any and all causes of action they may have including without limitations, any right to attorney fees arising out of this proceeding; libel; slander; violation of a constitutionally protected right; intentional tortious interference with advantageous contractual relationship and the like; arising prior to or out of the filing of the Complaint, Emergency Order, the execution of the stipulation and entry of the Final Order. The Department agrees to accept this release without acknowledging, and expressly denies, that any such causes of action may exist. Respondents further agree that nothing contained herein shall be construed to waive or restrict the Department's right to
initiate any legal action based upon facts or
information which come to the Department's attention subsequent to the execution of this stipulation and the Department further agrees that nothing contained herein shall be construed to waive or restrict the Respondents' rights to defend any subsequent legal action.
The Department and Respondents each agree to bear their own costs and attorneys' fees incurred in connection with this proceeding and entry of the Final Order, except as stated in paragraph 11k. herein.
The Department and Respondents represent that the officer(s) executing this
stipulation are authorized to act on behalf of the corporations and agency for settlement purposes.
The Department and Respondents acknowledge that they have read this stipulation and fully understand the rights, obligations, terms, conditions, duties, and responsibilities with respect to its contents.
Execution of this stipulation by the Department shall not be construed as a final acceptance of its terms and conditions absent entry of a Final Order by the Comptroller adopting same, however, the existing Emergency Order shall be null and void immediately upon entry of the Final Order by the Comptroller.
The undersigned parties hereby acknowledge and agree to the terms and conditions of the foregoing stipulation by written consent on the last date executed below, subject to final approval by the Comptroller.
On February 16, 1996, a Final Order was issued in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195 adopting the parties' Stipulation and requiring the parties to comply with the Stipulation's terms and conditions.
The purchases of the assets of Bowshier Buick, South Florida Auto Exchange, Inc., and Stuart Motors, Inc., were finalized in March of 1996.
On March 18, 1996, WPAS filed with the Department an Application for Motor Vehicle Retail Installment Seller License (WPAS's Application). In its Application, WPAS indicated that it was doing business as Palm Beach Motors at 2815 Okeechobee Boulevard in West Palm Beach. In response to Question 10 on the
application form, which read as follows, WPAS answered "yes" and appended to its completed Application a copy of the Stipulation filed in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F- 11/95, and 4287b-F-1195:
Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration, or the equivalent, to practice any profession or occupation revoked, suspended, or otherwise acted against?
Yes No
(If yes, list such persons, give details, and provide a copy of the allegations and documentation of the final disposition of the case.)
WPAS's Application was signed by Jack A. Bowshier, Sr.
On April 8, 1996, DAB filed with the Department an Application for Motor Vehicle Retail Installment Seller License (DAB's Application). In its Application, which was signed by Jack
A. Bowshier, Sr., DAB indicated that it was doing business as Stuart Motors at 2695 Southeast Federal Highway in Stuart. In response to Question 10 on the application form, DAB mistakenly answered "no." Neither a copy of the Stipulation filed in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195, nor a copy of the Final Order entered in these proceedings, was appended to DAB's completed Application.
The Department granted DAB's Application and issued DAB a MVRIS license, effective April 11, 1996.
On May 1, 1996, Jack A. Bowshier, Sr., sent the following letter to the Department:
I am voluntarily surrendering my license from the Department of Banking and Finance issued to DAB, Inc., D/B/A Stuart Motors to you today due to the fact that we have made an honest mistake in the application for the license. I apologize for this mistake. I am reapplying for the license for this corporation.
I ask that you please reconsider your position.
On that same day, May 1, 1996, Jack A. Bowshier, Sr., on behalf of WPAS, and William Chamberlain, on behalf of South Florida Auto Exchange, Inc., executed an agreement (WPAS Use of License Agreement), which provided as follows:
AGREEMENT made this 1st day of May, 1996 by and between SOUTH FLORIDA AUTO EXCHANGE, INC., DBA PALM BEACH MOTORS, INC., a Florida
corporation ("PBM") AND WPAS, INC., a Florida corporation ("Operator").
WHEREAS, PBM and Operator, or Operator's affiliate, entered into an agreement for sale and purchase of assets dated December 5, 1995 (the "Asset Purchase Agreement") for the purchase and sale of certain assets of PBM located at 2815 Okeechobee Blvd., West Palm Beach, Florida (the "Dealership"); and
WHEREAS, PBM and Operator closed on the sale and purchase on or about the 19th day of March, 1996; and
WHEREAS, Operator has submitted an application (the "Application") to the State of Florida, Comptroller's Office, Department of Banking (the "Department") for a license to originate financing in connection with the sale of automobiles at the Dealership, which Application remains pending with the Department; and
WHEREAS, Operator has not yet received a license from the Department pursuant to the Application; and
WHEREAS, Operator has requested PBM to allow Operator to continue to use PBM's license (the "PBM License") from the Department at the Dealership pending the Department's action on Operator's Application; and
WHEREAS, PBM, after obtaining the verbal approval of the Department, has agreed to allow Operator to utilize PBM['s] License at the Dealership on a temporary basis.
NOW, THEREFORE, for and in consideration of Ten dollars ($10.00) paid by Operator to PBM, as well as other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged by PBM, the parties agree as follows:
The foregoing recitals are true and correct and incorporated herein by reference.
PBM hereby authorizes Operator to originate finance paper under the PBM license at the Dealership until the earlier of:
PBM notice to Operator of the revocation of such authority, which notice may be given [by] PBM, in PBM's sole and absolute discretion, at any time upon three (3) days prior notice to Operator,
upon the Department's disposition of Operator's application, whether such disposition is a granting of a license or the denial of a license,
any demand by the Department that Operator cease the use of the PBM license,
upon the infraction of any rule or regulation by Operator applicable to the PBM License.
Operator agrees to utilize the PBM License only in strict compliance of all applicable rules and regulations, including, but not limited to the rules and regulations of the Department.
Operator does hereby agree to indemnify and hold PBM harmless against any claim arising out of the Dealership or Operator's use of the PBM License.
This Agreement contains the entire understanding of the parties and may not be changed or modified orally, but only by written instrument signed by the parties hereto.
Any notice required or permitted to be given under this Agreement shall be in writing, delivered by certified mail, return receipt requested, or by a national overnight courier service, such as Federal Express, and mailed to the parties at the following address:
PBM: c/o Stuart Buick Pontiac GMC 2445 S.E. Federal Highway Stuart, Florida 34994
Operator: 2815 Okeechobee Blvd.
West Palm Beach, Florida 33409
This agreement shall be binding upon the parties, their successors and assigns.
This Agreement shall be governed by the laws of the State of Florida.
In the event litigation is instituted in connection with the enforcement of the terms of this Agreement, the prevailing party shall be entitled to an award of costs and attorneys fees, including attorneys fees and costs on appeal.
The "PBM License" referenced in the WPAS Use of License Agreement had an "expiration date" of December 31, 1996.
An agreement between DAB and Stuart Motors, Inc. (DAB Use of License Agreement) containing provisions substantially identical to those in the WPAS Use of License Agreement was executed by Jack A. Bowshier, Sr. (on behalf of DAB) and Chamberlain (on behalf of Stuart Motors, Inc.) also on May 1, 1996. The MVRIS license which was the subject of the DAB Use of License Agreement, like the "PBM License," had an expiration date of December 31, 1996.
The WPAS and DAB Use of License Agreements were both drafted by Chamberlain's attorney, Michael Botos. Before drafting these agreements, Botos had spoken to Diane Leeds, an attorney with the Department. Botos erroneously believed that Leeds, acting on behalf of the Department, had given the "verbal approval" referenced in the agreements.
On May 6, 1996, Jack A. Bowshier, Sr., filed a corrected Application for Motor Vehicle Retail Installment Seller License on behalf of DAB (DAB's Second Application).
Department investigators visited Palm Beach Motors on July 19, 1996. They discovered, from an examination of WPAS's records, that WPAS (acting through Jack D. Bowshier, Jr., the general manager of Palm Beach Motors) had been involved in retail installment transactions with retail buyers of its vehicles, notwithstanding that it did not have a license from the Department authorizing it to engage in such activity. Ten retail installment contracts (signed by Jack D. Bowshier, Jr., on behalf
of WPAS) were found and reviewed. In four of these ten retail installment transactions, the buyer was charged a simple interest rate in excess of 18 percent per annum.
By letter mailed on July 19, 1996, the Department notified WPAS of its intention to deny WPAS's Application for a Motor Vehicle Installment Seller License. In its notice, the Department advised that its proposed denial was based upon, among other things, WPAS's engaging in the business of a motor vehicle retail installment seller without a license, in violation of Section 520.03(1), Florida Statutes.
Department investigators visited Stuart Motors on July 22, 1996. They discovered, from an examination of DAB's records, that DAB (acting through Todd Bowshier, the general
manager of Stuart Motors) had been involved in retail installment transactions with retail buyers of its vehicles, notwithstanding that it did not have a license from the Department authorizing it to engage in such activity. Ten retail installment contracts (signed by Todd Bowshier on behalf of DAB) were found and reviewed. In all of these ten retail installment transactions, the buyer was charged a simple interest rate of 19.95 percent per annum.
On or about July 26, 1996, Jack A. Bowshier, Sr., met with Department representatives, including Diane Leeds, to discuss the Department's proposed action.
At the meeting, Jack A. Bowshier, Sr., was told that "he could not finance without a license at that time under anybody's license."
Nonetheless, following the meeting, WPAS (doing business as Palm Beach Motors) and DAB (doing business as Stuart Motors), relying on the legal advice of their attorney (and acting through their general managers), continued to operate as motor vehicle retail installment sellers without having MVRIS licenses of their own (as they had done since May of that year, following the execution of the WPAS and DAB Use of License Agreements). In addition, they continued to knowingly charge buyers simple interest rates in excess of 18 percent per annum.
Jack A. Bowshier, Sr., was at all material times aware of these activities, which continued at Palm Beach Motors until approximately September or October of 1996, when the used car operation was sold,1 and continued at Stuart Motors until early 1997.
By letter mailed on October 1, 1996, the Department notified DAB of its intention to deny DAB's Second Application for a Motor Vehicle Installment Seller License. In its notice, the Department advised that its proposed denial was based upon, among other things, DAB's engaging in the business of a motor vehicle retail installment seller without a license, in violation of Section 520.03(1), Florida Statutes.
Department investigators returned to Stuart Motors on October 6, 1996, to examine DAB's records. Their examination revealed nine retail installment contracts that DAB had entered into since the investigators' July 22, 1996, visit. These contracts were signed by Todd Bowshier on behalf of DAB. In all but one of these retail installment transactions, the buyer was charged a simple interest rate of more than 18 percent per annum.
In late January of 1997, personnel from the Office of the State Attorney, 19th Judicial Circuit, assisted by Department personnel, conducted a search (pursuant to a search warrant) of the records maintained by DAB at Stuart Motors. Sixty-four retail installment contracts (signed by Todd Bowshier on behalf of DAB) that DAB had entered into from August 10, 1996, to January 25, 1997, (including eight of the nine contracts that Department investigators had discovered during their October 6, 1996, visit to Stuart Motors) were seized. Thirty-seven of these
64 retail installment transactions took place from August 10, 1996, to October 16, 1996. In all but one of these 37 transactions, the buyer was charged a simple interest rate of more than 18 percent per annum. In all of the post-October 16, 1996, transactions (including eight which occurred after the expiration of the MVRIS license which was the subject of the DAB Use of License Agreement), the buyer was charged a simple interest rate of 17.99 percent.
It was not until the Bowshiers received a copy of the following letter, dated February 13, 1997, the Office of the State Attorney, 19th Judicial Circuit, sent to the Department regarding the "Jack Bowshier investigation" that DAB stopped engaging in the business of a motor vehicle retail installment seller:
This letter is in response to your investigation of DAB, Inc. d/b/a Stuart Motors etc. As you are aware I have spent the last three weeks reviewing the events between your Department, which began on March 18, 1996, and the above named suspect. It is apparent from the outset of your investigation that Mr. Bowshier and associates have done everything in their power to continue operating a business and finance automobiles without the appropriate
Retail Installment Sellers license. However, it is my opinion that I would have insurmountable proof problems in a criminal prosecution based on the events that have occurred to date.
Mr. Bowshier maintains that he can continue writing installment loan contracts because the validity of the denial of his application continues to be the subject of litigation.
Mr. Bowshier continues to suggest that this is his position at the advi[c]e of his attorney, Mr. Ronald LaFace.
After speaking with Mr. LaFace regarding the above I can see why the suspect would reasonably rely on his attorney's advice.
Even to me, Mr. LaFace continues to maintain the position that the denial of the licensure application is "nonfinal." While we know this position is irrelevant to both the Department of Banking and Finance, and the criminal prosecution, it still creates the appearance of a defense which would remove the "criminal intent" aspect of our case.
I have an ethical obligation to only prosecute cases in which I believe, based on my training and experience, there is a reasonable chance for a conviction at trial. Because this case has become so diluted in "my attorney told me" and "my understanding was . . .," I cannot ethically go forward with a criminal prosecution and still meet my burden of proof at trial. However, I understand the frustration in wanting to go forward in a case of this nature. With that in mind this letter will serve two purposes. While my declination to prosecute this case up through the date of this letter is final, it is not absolute.
This letter will be sent to both Mr. Bowshier (and associates) and Mr. Ronald LaFace. In doing so, it will serve a very particular purpose. It will inform the above (including Mr. LaFace), that I will not prosecute the criminal acts that Mr. Bowshier and associates have committed to date because of the above explained proof problems. However, I will prosecute from this date forward any and all financing that occur[s] by the suspect and his associates without a license. I should make it perfectly clear to Mr.
Bowshier and his attorney that it does not matter what their position is regarding the "appeal" of the denial of license, they cannot finance automobiles. Mr. Bowshier and associates should also know that the advice of their attorney to continue writing contracts during the pendency of the licensure "appeal" is wrong. If the suspect and his associates continue to write contracts, it will constitute a criminal act despite the advice of his attorney. I will prosecute Mr. Bowshier and associates if he continues to write contracts without the appropriate licenses pr[e]scribe[d] by law.
The "appeal" referenced in the letter was taken after the Department, by letter mailed October 1, 1996, advised DAB of its intention to deny DAB's Application for a Motor Vehicle Installment Seller License. In its letter, the Department
advised that its proposed denial was based upon, among other things, DAB's engaging in the business of a motor vehicle retail installment seller without a license, in violation of Section 520.03(1), Florida Statutes.
CONCLUSIONS OF LAW
Chapter 520, Part I, Florida Statutes, contains the Motor Vehicle Retail Sales Finance Act (Act). Section 520.01, Florida Statutes.
Among other things, the Act requires, with certain exceptions not applicable to the instant cases, that motor vehicle retail installment sellers be licensed by the Department.
This requirement is found in Section 520.03, Florida Statutes, which provides as follows:
520.03 Licenses.–
A person may not engage in the business of a motor vehicle retail installment seller or operate a branch of such business without a license as provided in this section; however, a bank, trust company, savings and loan association, or credit union authorized to do business in this state is not required to obtain a license under this part. If a motor vehicle retail installment seller has more than one location in the same county, only one license shall be required for that county.
An application for a license under this part must be submitted to the department on such forms as the department may prescribe by rule. If the department determines that an application should be granted, it shall issue the license for a period not to exceed 2 years. A nonrefundable application fee not exceeding $200 shall be set by rule and accompany an initial application for the principal place of business and each branch location of a retail installment seller.
A renewal fee not exceeding $200 shall be set by rule. Biennial licensure periods and procedures for renewal of licenses may also be established by the department by rule. A license that is not renewed at the
end of the biennium established by the department shall automatically expire and revert to inactive status. Such inactive license may be reactivated within 6 months after the expiration date upon submission of a completed reactivation form, payment of the application fee, and payment of a reactivation fee equal to the application fee. A license that is not reactivated within 6 months after becoming inactive may not be reactivated.
Each license must specify the location for which it is issued and must be conspicuously displayed at that location. If a licensee's principal place of business or branch location changes, the licensee shall notify the department and the department shall endorse the change of location without charge. A licensee may not transact business as a motor vehicle retail installment seller except under the name by which it is licensed. Licenses issued under this part are not transferable or assignable.
The department may deny an initial application for a license under this part if the applicant or any person with power to direct the management or policies of the applicant is the subject of a pending criminal prosecution or governmental enforcement action, in any jurisdiction, until conclusion of such criminal prosecution or enforcement action.
Each seller shall designate and maintain an agent in this state for service of process.
"Motor vehicle retail installment seller" or "seller," as used in the Act, is defined in Section 520.02(12), Florida Statutes, as "a person engaged in the business of selling motor vehicles to retail buyers in retail installment transactions."
"Retail buyer" or "buyer," as used in the Act, is defined in Section 520.02(10), Florida Statutes, as "a person who
buys a motor vehicle from a seller not principally for the purpose of resale, and who executes a retail installment contract in connection therewith or a person who succeeds to the rights and obligations of such person."
"Retail installment contract" or "contract," as used in the Act, is defined in Section 520.02(11), Florida Statutes, as "an agreement, entered into in this state, pursuant to which the title to, or a lien upon the motor vehicle, which is the subject matter of a retail installment transaction, is retained or taken by a seller from a retail buyer as security, in whole or in part, for the buyer's obligation. The term includes a conditional sales contract and a contract for the bailment or leasing of a motor vehicle by which the bailee or lessee contracts to pay as compensation for its use a sum substantially equivalent to or in excess of its value and by which it is agreed that the bailee or lessee is bound to become, or for no further or a merely nominal consideration, has the option of becoming, the owner of the motor vehicle upon full compliance with the provisions of the contract."
"Retail installment transaction," as used in the Act, is defined in Section 520.02(13), Florida Statutes, as "any transaction evidenced by a retail installment contract entered into between a retail buyer and a seller wherein the retail buyer buys a motor vehicle from the seller at a deferred payment price payable in one or more deferred installments."
The Department is charged with the responsibility of administering and enforcing the provisions of Chapter 520, Florida Statutes, including those of the Act.
Among other things, the Department "may issue and serve upon a person a cease and desist order whenever the [D]epartment finds that such person is violating, has violated, or is about to violate any provision of . . . [Chapter 520], any rule or order adopted pursuant to this chapter, or any written agreement entered into with the [D]epartment." Section 520.994(3), Florida Statutes.
It also has authority to take "disciplinary action" against those who engage in wrongdoing in connection with "retail installment transactions." The extent of this authority is described in Section 520.995, Florida Statutes, which provides as follows:
520.995 Grounds for disciplinary action.–
The following acts are violations of this chapter and constitute grounds for the disciplinary actions specified in subsection (2):
Failure to comply with any provision of this chapter, any rule or order adopted pursuant to this chapter, or any written agreement entered into with the department;
Fraud, misrepresentation, deceit, or gross negligence in any home improvement finance transaction or retail installment transaction, regardless of reliance by or damage to the buyer or owner;
Fraudulent misrepresentation, circumvention, or concealment of any matter required to be stated or furnished to a retail buyer or owner pursuant to this chapter, regardless of reliance by or damage to the buyer or owner;
Willful2 imposition of illegal or excessive charges3 in any retail installment transaction or home improvement finance transaction;
False, deceptive, or misleading advertising by a seller or home improvement finance seller;
Failure to maintain, preserve, and keep available for examination, all books, accounts, or other documents required by this chapter, by any rule or order adopted pursuant to this chapter, or by any agreement entered into with the department;
Refusal to permit inspection of books and records in an investigation or examination by the department or refusal to comply with a subpoena issued by the department; or
Criminal conduct in the course of a person's business as a seller, as a home improvement finance seller, or as a sales finance company.
Upon a finding by the department that any person has committed any of the acts set forth in subsection (1), the department may enter an order taking one or more of the following actions:
Denying an application for a license pursuant to this chapter;
Revoking or suspending a license previously granted pursuant to this chapter;
Placing a licensee or an applicant for a license on probation for a period of time and subject to such conditions as the department may specify;
Placing permanent restrictions or conditions upon issuance or maintenance of a license pursuant to this chapter;
Issuing a reprimand; or
Imposing an administrative fine not to exceed $1,000 for each such act.4
In addition to the acts specified in subsection (1), the following shall be grounds for denial of a license pursuant to this chapter, or for revocation, suspension, or restriction of a license previously granted:
A material misstatement of fact in an initial or renewal application for a license;
Having a license, registration, or the equivalent, to practice any profession or occupation denied, suspended, revoked, or otherwise acted against by a licensing authority in any jurisdiction for fraud, dishonest dealing, or any act of moral turpitude;
Having been convicted or found guilty of a crime involving fraud, dishonest dealing, or any act of moral turpitude; or
Being insolvent or having a demonstrated lack of honesty or financial responsibility.
It is sufficient cause for the department to take any of the actions specified in subsection (2) as to any partnership, corporation, or association, if the department finds grounds for such action as to any member of the partnership, as to any officer or director of the corporation or association, or as to any person with power to direct the management or policies of the partnership, corporation, or association.5
Each licensee licensed pursuant to this chapter is responsible for the acts of its employees and agents, if, with actual knowledge of such acts, it retained profits,
benefits, or advantages accruing from such acts or if it ratified the conduct of its employee or agent as a matter of law or fact.
Proof greater than a mere preponderance of the evidence must be submitted in order for the Department to take action against a licensee's license or to impose an administrative fine for a violation of Section 520.995(1), Florida Statutes. Clear and convincing evidence is required. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Section 120.57(1)(h), Florida Statutes("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute."). "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
"Disciplinary action" taken by the Department may be based only upon those violations specifically alleged in the
administrative complaint or other accusatory instrument served on the alleged wrongdoer. See Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v.
Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984). Furthermore, such "disciplinary action" may not be more severe than the punishment that the Department warned the accused, in its accusatory pleading, might be imposed for these violations. See Cobas v. State, 671 So. 2d 838, 839 (Fla. 3d DCA 1996)("Finally, the trial court erred in imposing a habitual offender sentence in lower court case 89-33369, where Cobas was not given prior notice of the intent to seek enhanced penalties before the plea was accepted."); Williams v. Turlington, 498 So. 2d 468 (Fla. 3d DCA 1986)("Since Williams was not given notice by either the complaint or later proceedings that he was at risk of having his license permanently revoked, the Commission's imposition of the non-prayed-for relief of permanent revocation, even if justified by the evidence, was error.").
In determining whether Section 520.995(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one “must bear in mind that it is, in effect, a penal statute. . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be
construed in favor of the . . . licensee.” Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
In those cases where the Department seeks to deny licensure based upon a violation of the Act, it need not establish the existence of the violation by clear and convincing evidence. As the Florida Supreme Court stated in Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 933-34 (Fla. 1996):
Nevertheless, parties are held to varying standards of proof at the fact-finding stage in administrative proceedings depending on the nature of the proceedings and the matter at stake. Bowling v. Department of Ins., 394 So.2d 165, 171 (Fla. 1st DCA 1981). For
instance, in Ferris v. Turlington, 510 So.2d
292 (Fla.1987), we concluded that "[i]n a case where the proceedings implicate the loss of livelihood, an elevated standard is necessary to protect the rights and interests of the accused." Id. at 295. Consequently, we held that the clear and convincing evidence standard applied in proceedings involving the revocation of a professional license. Id.
In holding that the hearing officer failed to apply the clear and convincing evidence standard of proof to the license application proceedings in this case, the First District construed our decision in Ferris to mean "that the same clear and convincing standard is applicable to disputes over the granting of a license as it is to the revocation or suspension of a license." Osborne, 647 So.
2d at 249.
While we take this opportunity to reaffirm our decision in Ferris, we decline to extend
the clear and convincing evidence standard to license application proceedings. Instead, we agree with the analysis of Judge Booth explaining that in license application proceedings:
"The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue.
Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981). Thus, the majority is correct in its observation that appellants had the burden of presenting evidence of their fitness for registration. The majority is also correct in its holding that the Department had the burden of presenting evidence that appellants had violated certain statutes and were thus unfit for registration. The majority's conclusion, however, that the Department had the burden of presenting its proof of appellants' unfitness by clear and convincing evidence is wholly unsupported by Florida law and inconsistent with the fundamental principle that an applicant for licensure bears the burden of ultimate persuasion at each and every step of the licensure proceedings, regardless of which party bears the burden of presenting certain evidence.
This holding is equally inconsistent with the
principle that an agency has particularly broad discretion in determining the fitness of applicants who seek to engage in an occupation the conduct of which is a privilege rather than a right."
Osborne, 647 So. 2d at 250 (Booth, J., concurring and dissenting) (citations omitted). We emphasize the correctness of Judge Booth's conclusion that, while the burden of producing evidence may shift between the parties in an application dispute proceeding, the burden of persuasion remains upon the applicant to prove her entitlement to the license. Id.
The denial of registration pursuant to section 517.161(6)(a), Florida Statutes (1989), is not a sanction for the applicant's violation of the statute, but rather the
application of a regulatory measure. School Board of Pinellas County v. Noble, 384 So. 2d 205, 206 (Fla. 1st DCA), review denied, 389 So. 2d 1114 (Fla.1980); Lester v. Department of Prof. and Occ. Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977). Further, such a denial is without prejudice to an applicant's subsequent attempts at registration.
The clear and convincing evidence standard is also inconsistent with the discretionary authority granted by the Florida legislature to administrative agencies responsible for regulating professions under the State's police power. Boedy v. Department of Professional Regulation, 463 So. 2d 215 (Fla.1985). In this case, the Department was required to determine whether the respondents had demonstrated worthiness to transact business in Florida before approving their application. § 517.12(11), Fla. Stat. (1989). At the formal hearing, the Department presented evidence that the respondents had violated several provisions of chapter 517. The Department offered testimony from its representative, who had warned respondents that their conduct was illegal, as well as a series of letters and affidavits from Florida investors with whom respondents had traded without being registered. Based on the evidence, the hearing officer found that the respondents had violated the relevant statutory provisions.
Nothing about this case shows that the present standard invites an abuse of discretion by the Department in denying registration applications, or results in the denial of licenses which otherwise should or would be granted if the Department were put to a higher burden of proof. In short, this case fails to provide any meaningful reasons warranting the extension of the clear and convincing evidence standard to application proceedings.
In the instant case, the Department's Administrative Complaint for Imposition of Sanctions, as amended, alleges that
the Bowshiers "engaged in the business of a motor vehicle retail installment seller without a license, in violation of Sections 520.03(1) and 520.995(1)(a), Florida Statutes"; that they "charged usurious interest rates in retail installment transactions, in violation of Section 687.03(1), Florida Statutes"; and that they "willfully imposed illegal or excessive charges in retail installment transactions, in violation of Section 520.995(1)(d), Florida Statutes." The record evidence clearly and convincingly establishes that, as alleged in the Amended Administrative Complaint for Imposition of Sanctions:
WPAS, acting through its general manager, Jack D. Bowshier, Jr., and pursuant to the direction of its sole owner, president and director, Jack A. Bowshier, Sr.: 1. was involved in at least ten retail installment transactions with retail buyers of its vehicles, notwithstanding that that it did not have a Department- issued MVRIS license of its own, in violation of Sections 520.03(1) and 520.995(1)(a), Florida Statutes; and 2. willfully charged four of these buyers an unlawful and usurious rate of interest, in violation of Sections 687.03(1) and 520.995(1)(d), Florida Statutes; and (b) DAB, acting through its general manager, Todd Bowshier, and pursuant to the direction of its sole owner, president and director, Jack A. Bowshier, Sr.: 1. was involved in at least 75 retail installment transactions with retail buyers of its vehicles, notwithstanding that that it did not have a Department-issued MVRIS license of its own, in
violation of Sections 520.03(1) and 520.995(1)(a), Florida Statutes; and 2. willfully charged 47 of these buyers an unlawful and usurious rate of interest, in violation of Sections 687.03(1) and 520.995(1)(d), Florida Statutes.6 WPAS, DAB, Jack A. Bowshier, Sr., Jack D. Bowshier, Jr., and Todd Bowshier are therefore subject to "disciplinary action" pursuant to Section 520.995, Florida Statutes.
In determining what particular "disciplinary action" the Department should take against the Bowshiers for having committed these violations, it is necessary to consult Rule 3D- 85.111, Florida Administrative Code, which contains the Department's "disciplinary guidelines" for violations of Chapter 520, Florida Statutes. Cf. Williams v. Department of Transportation, 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency required to comply with its disciplinary guidelines in taking disciplinary action against employees).
Rule 3D-85.111, Florida Administrative Code, provides, in pertinent part, as follows:.
Pursuant to Section 520.995(2), Florida Statutes, listed below is a range of disciplinary guidelines from which disciplinary penalties will be imposed upon persons guilty of violating Chapter 520, Florida Statutes. The disciplinary guidelines are based upon a single-act violation of each provision listed. Multiple acts of the violated provisions or a combination of violations may result in a higher penalty than that for a single, isolated violation. For purposes of this rule, the order of penalties, ranging from lowest to highest, is: reprimand, fine,
probation, suspension, and revocation. Nothing in this rule shall preclude any discipline imposed upon a person pursuant to a stipulation or settlement agreement, nor shall the ranges of penalties set forth in this rule preclude the Department from issuing a letter of guidance when appropriate.
As provided in Section 520.995(2)(c), Florida Statutes, the Department may, in addition to other disciplinary penalties, place a licensee or applicant for a license on probation. The placement of the licensee or applicant for a license on probation shall be for such a period of time and subject to such conditions as the Department may specify.
The minimum penalty for below listed sections7 is a reprimand and/or a fine up to
$1,000.00 per act or separate offense. The maximum penalties are as listed: . . ..
(yyy) 520.995(1)(d) -- Revocation . . . .
(3)(a) In the presence of aggravating or mitigating circumstances supported by clear and convincing evidence the Department shall be entitled to deviate from the above guidelines in imposing discipline upon a person.
Aggravating or mitigating circumstances may include, but are not limited to, the following:
The severity of the act.
The degree of harm to the consumer or public.
The number of times the acts previously have been committed by the person.
The disciplinary history of the person.
The status of the person at the time the act was committed.
Having considered the facts of the instant case in light of the provisions of Rule 3D-85.111, Florida Administrative Code, the undersigned recommends that the Department take the following "disciplinary action" against the Bowshiers: impose jointly and severally upon WPAS, Jack A. Bowshier, Sr., and Jack
D. Bowshier, Jr. (for committing 14 separate violations of the Act: engaging in ten retail installment transactions without the required Department-issued MVRIS license; and charging an unlawful and usurious rate of interest in four of these transactions) an administrative fine in the amount of $7,000.00; and impose jointly and severally upon DAB, Jack A. Bowshier, Sr., and Todd Bowshier (for committing 122 separate violations of the Act: engaging in 75 retail installment transactions without the required Department-issued MVRIS license; and charging an unlawful and usurious rate of interest in 47 of these transactions) an administrative fine in the amount of $61,500.00 The Department should also issue a cease and desist order upon the Bowshiers.
The Department's Notices of Intent to Deny Applications for Motor Vehicle Retail Installment Seller License, as amended, allege that WPAS's Application and DAB's Second Application should be denied based upon violations of the Act (specifically, Sections 520.03, 520.995(1)(a), and 520.995(1)(d), Florida Statutes) that WPAS and DAB each committed and violations of the Act (specifically Sections 520.995(1)(b), 520.995(3)(b), and
520.995(3)(d), Florida Statutes) committed by Bowshier Buick, which was controlled by: Jack A. Bowshier, Sr., the sole owner, president and director of both WPAS and DAB; and his son, Jack D. Bowshier, Jr., who was the general manager of Palm Beach Motors during WPAS's operation of the business. The preponderance of the evidence establishes that these violations were committed, as alleged by the Department. These violations warrant the denial of WPAS's and DAB's applications for licensure8 pursuant to Section 520.995, Florida Statutes.9
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department enter a final order (1) finding the Bowshiers guilty of the violations alleged in the Amended Administrative Complaint; (2) directing the Bowshiers to cease and desist from committing such violations; (3) imposing jointly and severally upon WPAS, Jack A. Bowshier, Sr., and Jack
D. Bowshier, Jr., an administrative fine in the amount of
$7,000.00; (4) imposing jointly and severally upon DAB, Jack A. Bowshier, Sr., and Todd Bowshier an administrative fine in the amount of $61,500.00; and (5) denying WPAS's and DAB's applications for licensure.
DONE AND ENTERED this 28th day of May, 1998, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1998.
ENDNOTES
1 WPAS is now in the automobile salvage business and does business under the name "Auto Buster's."
2 "The lender's professed ignorance of the laws of usury [does] not render lawful his knowing and intentional acceptance of usurious interest. . . . The willful violation mentioned in the statute . . . consists of knowingly and intentionally charging or accepting interest at a higher rate than the law allows." Ross v. Whitman, 181 So. 2d 701, 702 (Fla. 3d DCA 1966); see also Shorr v. Skafte, 90 So. 2d 604, 607 (Fla. 1956)("[T]he important factor is the willfulness of the lender. And the matter of willfulness is not absolutely closed by the bare statement of the lender that he was unconscious of wrongdoing. . . . We conclude that the circumstances established clearly a purpose to collect unconscionable interest and that this purpose could not be explained away by a profession of ignorance [of the law] on the part of the lender."); Jersey Palm-Gross, Inc. v. Paper, 639 So. 2d 664, 668 (Fla. 4th DCA 1994), aff'd, 658 So. 2d 531 (Fla. 1995)("The lender's claimed ignorance of the specifics of Florida's usury laws does not preclude a finding of intent. . . .
Gross' testimony that he did not intend to charge an unlawful
rate of interest is also not determinative. . . . Despite the lender's assertions to the contrary, the requisite intent was established by proving the lender's knowledge of the amount of interest to be received and intent to receive the amount charged."); Curtiss National Bank of Miami Springs v. Solomon,
243 So. 2d 475, 477 (Fla. 3d DCA 1971)("When the lender has intentionally and purposely done that which amounts to or results
in a contract for or the exaction of usurious interest, an argument by the lender that it was not shown the lender intended to violate the usury statute is without merit."); Lee Construction Corp. v. Newman, 143 So. 2d 222, 225 (Fla. 3d DCA 1962)("[A w]illful violation [of the usury laws] mean[s] willfully and knowingly charging and accepting for the loan an amount in excess of the maximum interest allowed. If the lender intentionally does that, then regardless of what device is used to make it appear other than a loan and interest thereon, he is guilty of usury. . . . 'The intent which enters into, and is essential to, constitute usury is simply the intent to take and reserve more than permitted by law for the loan.' . . .
Here it is established by the manifest weight of the evidence, as well as through the lenders' admissions, that they knowingly and intentionally charged and reserved a sum which amounted to over 40% per annum on the loaned, and which was more than 30% per annum for the subsequent period of forbearance. The fact that they did so in reliance on a scheme they felt would prevent those exactions from constituting a violation of the law, does not make their intentional action which resulted in the usurious contract any less willfully and knowingly done and undertaken. . . .
Where the circumstances point unerringly to an intentional taking of an amount above the sum loaned which is more than the rate of interest allowed by law, and particularly where the intent to exact such an excessive amount is further indicated by the fact that an illogical or spurious transaction is entered into for the purpose of making that which is usurious appear otherwise, the lenders will not be excused from the penalties of the usury statute by pleading ignorance of the law or that they did not intend usury.").
3 Section 687.031, Florida Statutes, provides that, with certain exceptions not applicable to the instant case, "it shall be usury and unlawful for any person, or for any agent, officer, or other representative of any person, to reserve, charge, or take for any loan, advance of money, line of credit, forbearance to enforce the collection of any sum of money, or other obligation a rate of interest greater than the equivalent of 18 percent per annum simple interest, either directly or indirectly, by way of commission for advances, discounts, or exchange, or by any contract, contrivance, or device whatever whereby the debtor is required or obligated to pay a sum of money greater than the actual principal sum received, together with interest at the rate of the equivalent of 18 percent per annum simple interest."
4 Section 520.994(4), Florida Statutes, which provides as follows, also authorizes the imposition of such an administrative fine:
In addition to any other powers conferred upon it to enforce or administer this chapter, the [D]epartment may impose and collect an administrative fine against any person found to have violated any provision of this chapter, any rule or order adopted pursuant to this chapter, or any written agreement entered into with the department, in an amount not to exceed $1,000 for each violation.
5 An individual is subject to "disciplinary action" pursuant to Section 520.995, Florida Statutes, for violations of the Act in which he participated, or for which he is personally responsible, even if such violations were committed while the individual was acting on behalf of a corporate entity. Cf. Babic v. Berg, 666 So. 2d 943 (Fla. 4th DCA 1995)("Officers and agents of corporations can be personally liable for committing torts, where the tort is committed within the scope of their corporate employment."); Kerry's Bromeliad Nursery, Inc. v. Reiling, 561 So. 2d 1305 (Fla. 3d DCA 1990)("[T]he fact that the defendant allegedly committed such negligent acts while employed as the chief executive officer for his close corporation cannot change this result because it is settled that a corporate employee is personally liable for his own torts--even though committed within the scope of his employment with the said corporation."); P.V. Construction Corporation v. Kovner, 538 So. 2d 502 (Fla. 4th DCA 1989)("[I]t is well established that an officer of a corporation who commits or participates in a tort, whether or not it is in furtherance of corporate business and whether or not it is by authority of the corporation, is liable to the injured party whether or not the corporation is also liable."); White-Wilson Medical Center v. Dayta Consultants, Inc., 486 So. 2d 659, 661 (Fla. 1st DCA 1986)("[O]fficers or agents of a corporation may be held liable for their own torts even if such acts are performed within the scope of their employment or as corporate officers or agents."); State v. Shouse, 177 So. 2d 724, 726-27 (Fla. 2d DCA 1965)("The fact that a corporation may be held criminally liable for embezzlement of property of a third person, does not, of itself, render immune from prosecution an officer or employee who committed or authorized the corporate acts constituting the offense. . . . [A] corporate officer who, with intent to defraud, personally performed or authorized acts constituting embezzlement under Section 84.07(3), supra, is individually liable even though the acts were performed in a representative capacity on behalf of a corporate contractor.").
6 The WPAS and DAB Use of License Agreements did not render such activities lawful. As a general rule, unless otherwise provided by the pertinent licensing statute, licenses may not be transferred or assigned without the consent of the licensing
authority. See Pension Benefit Guaranty Corporation v. Braniff Airways, Inc., 700 F.2d 935, 942 (5th Cir. 1983)("[T]he most substantial and persuasive line of authority establishes that any transfer of a state or federal regulatory license or certificate is subject to the continuing jurisdiction and approval of the applicable agency."); Burns International Security Services, Inc. v. Department of Transportation, 671 P.2d 446, 448 (Hawaii 1983)(" A license is generally regarded as personal and may not be transferred by the licensee without the consent of the licensing authorities."); Reith v. General Telephone Company of Illinois, 317 N.E.2d 369, 374 (Ill. App. Ct. 1974)("A license is a personal and exclusive grant or privilege conferred upon the licensee. It is not assignable unless specifically stated to be so. The consent or license given by the public authorities herein, who maintain the public rights-of-way for the people's safe use, was to the defendant alone and not to Harris-McBurney Company."); Hempstead T-W Corporation v. Town of Hempstead, 177 N.Y.S. 2d 445, 452 (N.Y. Sup. Ct. 1958), aff'd, 179 N.Y.S. 2d 848
(N.Y. App. Div. 1958)("Since the town has the right to license,
it has the right to know and to determine who the licensee shall be. A license is not a commodity that can be bought and sold.
Furthermore, licensing provisions are in part intended to identify accurately the agency responsible for the control and the operation of each tow car."); John B. Barbour Trucking Company v. State of Texas, 758 S.W.2d 684, 691 (Tex. Ct. App. 1988)("Generally speaking, the authority granted in an official license cannot be transferred without consent of the
licensing authority unless the pertinent statute provides otherwise."). No statutory exception to this general rule has been made in the Act for MVRIS licenses. Indeed, as the Bowshiers should have been aware (See Florida Board of Pharmacy v. Levin, 190 So. 2d 768, 770 (Fla. 1966); Wallen v. Department of Professional Regulation, Division of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990); Chroma Corporation v. County of Adams, 543 P.2d 83, 86 (Col. Ct. App. 1975)), Section 520.03(4), Florida Statutes, specifically provides that MVRIS licenses "are not transferable or assignable." Furthermore, that the Bowshiers may have been relying upon the advice of counsel in engaging in these unlawful activities does not provide them with a defense to the charges against them. See Carr v. Cole, 161 So. 392, 393 (Fla.
1935)("The evidence amply sustains the conclusion of the
chancellor that the complainant willfully violated the provisions of the act. He knew that by the scheme or device used he was exacting the payment of interest greater than 10 percent per annum. It is merely a matter of calculation. He cannot seek immunity behind the advice of counsel that in their opinion the transaction was not violative of the statute forbidding the exaction of greater interest than 10 percent per annum for the loan of money."); Huff v. State, 646 So. 2d 742, 743 (Fla. 2d DCA 1994)(advice of counsel not a valid defense to the crime of "sale
of a security by an unregistered dealer"). It is, however, a factor that should be considered in determining the punishment they should receive for their transgressions, although its significance is lessened by the fact that the Department advised them (in its July 19, 1996, notice of intent to deny WPAS's Application, in a July 26, 1996, discussion with Jack A. Bowshier, Sr., concerning such proposed action, and in its October 1, 1996, notice of intent to deny DAB's Second Application) that, in the Department's opinion, their attorney's advice was wrong. See Securities and Exchange Commission v.
First Financial Group of Texas, Inc., 659 F.2d 660, 670 (5th Cir. 1981)("Reliance upon advice of counsel may be considered in mitigation of the sanction but does not constitute a defense to contempt of court."); United States v. Goldfarb, 167 F.2d 735 (2d Cir. 1948)("[A]dvice of counsel is not a defense to an act of contempt, although it may be considered in mitigation of punishment."); Eustace v. Lynch, 80 F.2d 652, 656 (9th Cir.
1935)("While the advice of an attorney is not a defense to an act of contempt, it is a matter to be considered in mitigation in a trial for criminal contempt."); Robinson v. Air Draulics Engineering Company, 377 S.W.2d 908, 913 (Tenn. 1964)("The defense of Haase rests entirely upon his sworn testimony
that . . . he acted upon the advice of his then counsel, Mr. Herman E. Taylor. As we have indicated above, this is not a bar to punishment for contempt, but it seems to us that since Mr.
Taylor testified that he did advise and counsel with Mr. Haase that this should be considered in mitigation of the punishment of Haase under the facts in this case.").
7 Neither Section 520.03(1), Florida Statutes, nor Section 520.995(1)(a), Florida Statutes, are among the statutory "sections" listed in Rule 3D-85.111, Florida Administrative Code.
8 The denial of licensure is not a sanction, "but rather the application of a regulatory measure." Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 933-34 (Fla. 1996); see also Silver Show Inc. v. Department of Business and Professional Regulation, 23 Fla. L. Weekly D1084b (Fla. 4th DCA April 22, 1998)("The principles governing the discipline of those who have already qualified for a license are thus inapposite to the principles governing the exercise of the agency's discretion to grant the privilege of holding such a license.").
Accordingly, an application for licensure may be denied based upon misconduct for which the applicant has already been punished. See Appeal of Stephen O. Dell, M.D., 668 A.2d 1024, 1030 (N.H. 1995)("We also reject the petitioner's argument that the board breached its implied contractual covenant of good faith and fair dealing by considering charges marked nolle prosequi.
He contends that the effect of marking certain charges nolle prosequi was to preclude the board from considering them at a
later date. The parties entered into the consent order pursuant to a disciplinary proceeding. Even if the board was barred from considering those charges with regard to future disciplinary action against the petitioner, a question not before us, there is nothing in the consent order preventing the board from considering them in deciding whether he should be relicensed.").
9 The undersigned finds unpersuasive the Bowshiers' argument that, in light of the Final Order issued in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195 adopting the Stipulation executed by the parties to those proceedings, the Department is estopped from denying WPAS's and DAB's applications for licensure. Neither WPAS, nor DAB, was a party to the administrative proceedings that culminated in the Final Order and, in any event, neither the Final Order, nor the Stipulation, even addressed, much less resolved, the issue of WPAS's and DAB's entitlement to the MVRIS licenses they are now seeking. See The Florida Bar v. Clement, 662 So. 2d 690, 697 (Fla. 1995)("Collateral estoppel is a judicial doctrine that prevents identical parties from relitigating issues that have been previously decided between them. . . . Although federal courts and some other jurisdictions no longer require mutuality of parties as a prerequisite to asserting the doctrine of collateral estoppel, Florida courts have held that collateral estoppel can be asserted only when the identical issue has been litigated between the same parties."); Sogniew v. McQueen, 656 So. 2d 917, 919-20 (Fla. 1995)("Collateral estoppel, also known as estoppel by judgment, serves as a bar to relitigation of an issue which has already been determined by a valid
judgment. . . . Florida has traditionally required that there be
a mutuality of parties in order for the doctrine to apply. . . .
We are unwilling to follow the lead of certain other states and the federal courts in abandoning the requirements of mutuality in the application of collateral estoppel.); Walley v. Florida Game and Fresh Water Fish Commission, 501 So. 2d 671, 674 (Fla. 1st DCA 1987)(Criminal Justice Standards and Training Commission's dismissal of charges against Florida Game and Fresh Water Fish Commission wildlife officer accused of falsifying employment applications did not require Career Service Commission to find that termination of officer's employment, based upon same alleged misconduct, was not justified inasmuch as "[t]here existed neither the mutuality of issues nor parties in the two proceedings, as required under Florida law if collateral estoppel is to apply"). To conclude, as the Bowshiers suggest the undersigned should, that the Department, by executing and then adopting the Stipulation in its Final Order, committed itself to granting MVRIS licenses to "Jack A. Bowshier, Sr., regardless of the name, or situs of the business venture" and that such licenses are the ones being sought in DOAH Case Nos. 96-4970 and 96-4971, would require the undersigned to not only ignore the
language of the Stipulation, but, in addition, to overlook the fact that it is two corporations, WPAS and DAB (not Jack A. Bowshier, Sr.) that have applied for these licenses. This the undersigned cannot do. See Florida Real Estate Commission v. Shealy, 647 So. 2d 151, 152 (Fla. 1st DCA 1994)("Although the appellee and the corporation were found to be 'one and the same entity' based on the appellee's control of the business, the statute [Section 57.111, Florida Statutes] does not permit such disregard of the corporate form."); Woods v. Greater Naples Care Center, 406 So. 2d 1172, 1173 (Fla. 1st DCA 1981)("A stipulation cannot be extended to embrace matters not included in the stipulation."); Ed Skoda Ford, Inc. v. P & P Paint and Body Shop, Inc., 277 So. 2d 818, 819 (Fla. 3d DCA 1973)("[T]he officers of the plaintiff corporation cannot avail themselves of the corporate shield when it suits their purpose and discard the same when it does not appear advantageous."). Moreover, even, assuming arguendo, that, as the Bowshiers contend, the Department, in Administrative Proceeding Nos. 4287-F-11/95,
4287a-F-11/95, and 4287b-F-1195, agreed that WPAS and DAB should
receive the MVRIS licenses they are now seeking, the Department would not be barred from denying WPAS's and DAB's applications for licensure based upon the unlawful conduct (described above) in which WPAS and DAB engaged subsequent to the entry of the Final Order in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195. See University Hospital, Ltd. v. Agency for Health Care Administration, 697 So. 2d 909, 912 (Fla. 1st DCA 1997)("We note that collateral estoppel 'does not apply where unanticipated subsequent events create a new legal situation.'"); Holiday Inns, Inc. v. City of Jacksonville, 678
So. 2d 528, 529 (Fla. 1st DCA 1996)("Res judicata (and collateral estoppel) 'is applicable to rulings or decisions of administrative bodies . . . unless it can be shown that since the earlier ruling thereon there has been a substantial change of circumstances relating to the subject matter with which the ruling was concerned sufficient to promote or prompt a different or contrary determination.'").
COPIES FURNISHED:
Kevin Rosen
Assistant General Counsel Office of the Comptroller
110 Southeast Sixth Street, Suite 1400 Fort Lauderdale, Florida 33301-5000
U. Timothy Juergens, Esquire
200 North Fountain Avenue Springfield, Ohio 45504
Jack A. Bowshier, Sr. Jack D. Bowshier, Jr. Todd Bowshier
WPAS, Inc.
DAB, Inc.
2055 Southeast St. Lucie Boulevard Stuart Florida 34996
Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
Harry Hooper, General Counsel Office of the Comptroller Fletcher Building Suite 526
101 East Gaines Street Tallahassee, Florida 32399-0350
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.
1 WPAS is now in the automobile salvage business and does business under the name "Auto Buster's."
2 "The lender's professed ignorance of the laws of usury [does] not render lawful his knowing and intentional acceptance of usurious interest. . . . The willful violation mentioned in the statute . . . consists of knowingly and intentionally charging or accepting interest at a higher rate than the law allows." Ross v. Whitman, 181 So. 2d 701, 702 (Fla. 3d DCA 1966); see also Shorr v. Skafte, 90 So. 2d 604, 607 (Fla. 1956)("[T]he important factor is the willfulness of the lender. And the matter of willfulness is not absolutely closed by the bare statement of the lender that he was unconscious of wrongdoing. . . . We conclude that the circumstances established clearly a purpose to collect unconscionable interest and that this purpose could not be explained away by a profession of ignorance [of the law] on the part of the lender."); Jersey Palm-Gross, Inc. v. Paper, 639 So. 2d 664, 668 (Fla. 4th DCA 1994), aff'd, 658 So. 2d 531 (Fla. 1995)("The lender's claimed ignorance of the specifics of Florida's usury laws does not preclude a finding of intent. . . .
Gross' testimony that he did not intend to charge an unlawful
rate of interest is also not
determinative. . . . Despite the lender's assertions to the contrary, the requisite intent was established by proving the
lender's knowledge of the amount of interest to be received and intent to receive the amount charged."); Curtiss National Bank of Miami Springs v. Solomon, 243 So. 2d 475, 477 (Fla. 3d DCA 1971)("When the lender has intentionally and purposely done that which amounts to or results in a contract for or the exaction of usurious interest, an argument by the lender that it was not shown the lender intended to violate the usury statute is without merit."); Lee Construction Corp. v. Newman, 143 So. 2d 222, 225 (Fla. 3d DCA 1962)("[A w]illful violation [of the usury laws] mean[s] willfully and knowingly charging and accepting for the loan an amount in excess of the maximum interest allowed. If the lender intentionally does that, then regardless of what device is used to make it appear other than a loan and interest thereon, he is guilty of usury. . . . 'The intent which enters into, and is essential to, constitute usury is simply the intent to take and reserve more than permitted by law for the loan.' . . .
Here it is established by the manifest weight of the evidence, as
well as through the lenders' admissions, that they knowingly and intentionally charged and reserved a sum which amounted to over 40% per annum on the loaned, and which was more than 30% per annum for the subsequent period of forbearance. The fact that they did so in reliance on a scheme they felt would prevent those exactions from constituting a violation of the law, does not make their intentional action which resulted in the usurious contract any less willfully and knowingly done and undertaken. . . .
Where the circumstances point unerringly to an intentional taking of an amount above the sum loaned which is more than the rate of interest allowed by law, and particularly where the intent to exact such an excessive amount is further indicated by the fact that an illogical or spurious transaction is entered into for the purpose of making that which is usurious appear otherwise, the lenders will not be excused from the penalties of the usury statute by pleading ignorance of the law or that they did not intend usury.").
3 Section 687.031, Florida Statutes, provides that, with certain exceptions not applicable to the instant case, "it shall be usury and unlawful for any person, or for any agent, officer, or other representative of any person, to reserve, charge, or take for any loan, advance of money, line of credit, forbearance to enforce the collection of any sum of money, or other obligation a rate of interest greater than the equivalent of 18 percent per annum simple interest, either directly or indirectly, by way of commission for advances, discounts, or exchange, or by any contract, contrivance, or device whatever whereby the debtor is required or obligated to pay a sum of money greater than the actual principal sum received, together with interest at the rate of the equivalent of 18 percent per annum simple interest."
4 Section 520.994(4), Florida Statutes, which provides as follows, also authorizes the imposition of such an administrative fine:
In addition to any other powers conferred upon it to enforce or administer this chapter, the [D]epartment may impose and collect an administrative fine against any person found to have violated any provision of this chapter, any rule or order adopted pursuant to this chapter, or any written agreement entered into with the department, in an amount not to exceed $1,000 for each violation.
5 An individual is subject to "disciplinary action" pursuant to Section 520.995, Florida Statutes, for violations of the Act in which he participated, or for which he is personally responsible, even if such violations were committed while the individual was acting on behalf of a corporate entity. Cf. Babic v. Berg, 666 So. 2d 943 (Fla. 4th DCA 1995)("Officers and agents of corporations can be personally liable for committing torts, where the tort is committed within the scope of their corporate employment."); Kerry's Bromeliad Nursery, Inc. v. Reiling, 561 So. 2d 1305 (Fla. 3d DCA 1990)("[T]he fact that the defendant allegedly committed such negligent acts while employed as the chief executive officer for his close corporation cannot change this result because it is settled that a corporate employee is personally liable for his own torts--even though committed within the scope of his employment with the said corporation."); P.V. Construction Corporation v. Kovner, 538 So. 2d 502 (Fla. 4th DCA 1989)("[I]t is well established that an officer of a corporation who commits or participates in a tort, whether or not it is in furtherance of corporate business and whether or not it is by authority of the corporation, is liable to the injured party whether or not the corporation is also liable."); White-Wilson Medical Center v. Dayta Consultants, Inc., 486 So. 2d 659, 661 (Fla. 1st DCA 1986)("[O]fficers or agents of a corporation may be held liable for their own torts even if such acts are performed within the scope of their employment or as corporate officers or agents."); State v. Shouse, 177 So. 2d 724, 726-27 (Fla. 2d DCA 1965)("The fact that a corporation may be held criminally liable for embezzlement of property of a third person, does not, of itself, render immune from prosecution an officer or employee who committed or authorized the corporate acts constituting the offense. . . . [A] corporate officer who, with intent to defraud, personally performed or authorized acts constituting embezzlement under Section 84.07(3), supra, is individually
liable even though the acts were performed in a representative capacity on behalf of a corporate contractor.").
6 The WPAS and DAB Use of License Agreements did not render such activities lawful. As a general rule, unless otherwise provided by the pertinent licensing statute, licenses may not be transferred or assigned without the consent of the licensing authority. See Pension Benefit Guaranty Corporation v. Braniff Airways, Inc., 700 F.2d 935, 942 (5th Cir. 1983)("[T]he most substantial and persuasive line of authority establishes that any transfer of a state or federal regulatory license or certificate is subject to the continuing jurisdiction and approval of the applicable agency."); Burns International Security Services, Inc. v. Department of Transportation, 671 P.2d 446, 448 (Hawaii 1983)(" A license is generally regarded as personal and may not be transferred by the licensee without the consent of the licensing authorities."); Reith v. General Telephone Company of Illinois, 317 N.E.2d 369, 374 (Ill. App. Ct. 1974)("A license is a personal and exclusive grant or privilege conferred upon the licensee. It is not assignable unless specifically stated to be so. The consent or license given by the public authorities herein, who maintain the public rights-of-way for the people's safe use, was to the defendant alone and not to Harris-McBurney Company."); Hempstead T-W Corporation v. Town of Hempstead, 177
N.Y.S. 2d 445, 452 (N.Y. Sup. Ct. 1958)("Since the town has the
right to license, it has the right to know and to determine who the licensee shall be. A license is not a commodity that can be bought and sold. Furthermore, licensing provisions are in part intended to identify accurately the agency responsible for the control and the operation of each tow car."); John B. Barbour Trucking Company v. State of Texas, 758 S.W.2d 684, 691 (Tex. Ct. App. 1988)("Generally speaking, the authority granted in an official license cannot be transferred without consent of the licensing authority unless the pertinent statute provides otherwise."). No statutory exception to this general rule has been made in the Act for MVRIS licenses. Indeed, as the Bowshiers should have been aware (See Florida Board of Pharmacy v. Levin, 190 So. 2d 768, 770 (Fla. 1966); Wallen v. Department of Professional Regulation, Division of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990); Chroma Corporation v. County of Adams, 543 P.2d 83, 86 (Col. Ct. App. 1975)), Section 520.03(4), Florida Statutes, specifically provides that MVRIS licenses "are not transferable or assignable." Furthermore, that the Bowshiers may have been relying upon the advice of counsel in engaging in these unlawful activities does not provide them with a defense to the charges against them. See Carr v. Cole, 161 So. 392, 393 (Fla.
1935)("The evidence amply sustains the conclusion of the
chancellor that the complainant willfully violated the provisions of the act. He knew that by the scheme or device used he was exacting the payment of interest greater than 10 percent per
annum. It is merely a matter of calculation. He cannot seek immunity behind the advice of counsel that in their opinion the transaction was not violative of the statute forbidding the exaction of greater interest than 10 percent per annum for the loan of money."); Huff v. State, 646 So. 2d 742, 743 (Fla. 2d DCA 1994)(advice of counsel not a valid defense to the crime of "sale of a security by an unregistered dealer"). It is, however, a factor that should be considered in determining the punishment they should receive for their transgressions, although its significance is lessened by the fact that the Department advised them (in its July 19, 1996, notice of intent to deny WPAS's Application, in a July 26, 1996, discussion with Jack A. Bowshier, Sr., concerning such proposed action, and in its October 1, 1996, notice of intent to deny DAB's Second Application) that, in the Department's opinion, their attorney's advice was wrong. See Securities and Exchange Commission v.
First Financial Group of Texas, Inc., 659 F.2d 660, 670 (5th Cir.
1981)("Reliance upon advice of counsel may be considered in mitigation of the sanction but does not constitute a defense to contempt of court."); United States v. Goldfarb, 167 F. 2d 735 (2d Cir. 1948)("[A]dvice of counsel is not a defense to an act of contempt, although it may be considered in mitigation of punishment."); Eustace v. Lynch, 80 F. 2d 652, 656 (9th Cir.
1935)("While the advice of an attorney is not a defense to an act of contempt, it is a matter to be considered in mitigation in a trial for criminal contempt."); Robinson v. Air Draulics Engineering Company, 377 S.W. 2d 908, 913 (Tenn. 1964)("The defense of Haase rests entirely upon his sworn testimony
that . . . he acted upon the advice of his then counsel, Mr. Herman E. Taylor. As we have indicated above, this is not a bar to punishment for contempt, but it seems to us that since Mr.
Taylor testified that he did advise and counsel with Mr. Haase that this should be considered in mitigation of the punishment of Haase under the facts in this case.").
7 Neither Section 520.03(1), Florida Statutes, nor Section 520.995(1)(a), Florida Statutes, are among the statutory "sections" listed in Rule 3D-85.111, Florida Administrative Code.
8 The denial of licensure is not a sanction, "but rather the application of a regulatory measure." Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 933-34 (Fla. 1996); see also Silver Show Inc. v. Department of Business and Professional Regulation, 23 Fla. L. Weekly D1084b (Fla. 4th DCA April 22, 1998)("The principles governing the discipline of those who have already qualified for a license are thus inapposite to the principles governing the exercise of the agency's discretion to grant the privilege of holding such a license.").
Accordingly, an application for licensure may be denied based
upon misconduct for which the applicant has already been punished. See Appeal of Stephen O. Dell, M.D., 668 A. 2d 1024, 1030 (N.H. 1995)("We also reject the petitioner's argument that the board breached its implied contractual covenant of good faith and fair dealing by considering charges marked nolle prosequi.
He contends that the effect of marking certain charges nolle prosequi was to preclude the board from considering them at a later date. The parties entered into the consent order pursuant to a disciplinary proceeding. Even if the board was barred from considering those charges with regard to future disciplinary action against the petitioner, a question not before us, there is nothing in the consent order preventing the board from considering them in deciding whether he should be relicensed.").
9 The undersigned finds unpersuasive the Bowshiers' argument that, in light of the Final Order issued in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195 adopting the Stipulation executed by the parties to those proceedings, the Department is estopped from denying WPAS's and DAB's applications for licensure. Neither WPAS, nor DAB, was a party to the administrative proceedings that culminated in the Final Order and, in any event, neither the Final Order, nor the Stipulation, even addressed, much less resolved, the issue of WPAS's and DAB's entitlement to the MVRIS licenses they are now seeking. See The Florida Bar v. Clement, 662 So. 2d 690, 697 (Fla. 1995)("Collateral estoppel is a judicial doctrine that prevents identical parties from relitigating issues that have been previously decided between them. . . . Although federal courts and some other jurisdictions no longer require mutuality of parties as a prerequisite to asserting the doctrine of collateral estoppel, Florida courts have held that collateral estoppel can be asserted only when the identical issue has been litigated between the same parties."); Sogniew v. McQueen, 656 So. 2d 917, 919-20 (Fla. 1995)("Collateral estoppel, also known as estoppel by judgment, serves as a bar to relitigation of an issue which has already been determined by a valid
judgment. . . . Florida has traditionally required that there be
a mutuality of parties in order for the doctrine to apply. . . .
We are unwilling to follow the lead of certain other states and the federal courts in abandoning the requirements of mutuality in the application of collateral estoppel.); Walley v. Florida Game and Fresh Water Fish Commission, 501 So. 2d 671, 674 (Fla. 1st DCA 1987)(Criminal Justice Standards and Training Commission's dismissal of charges against Florida Game and Fresh Water Fish Commission wildlife officer accused of falsifying employment applications did not require Career Service Commission to find that termination of officer's employment, based upon same alleged misconduct, was not justified inasmuch as "[t]here existed neither the mutuality of issues nor parties in the two
proceedings, as required under Florida law if collateral estoppel is to apply"). To conclude, as the Bowshiers suggest the undersigned should, that the Department, by executing and then adopting the Stipulation in its Final Order, committed itself to granting MVRIS licenses to "Jack A. Bowshier, Sr., regardless of the name, or situs of the business venture" and that such licenses are the ones being sought in DOAH Case Nos. 96-4970 and 96-4971, would require the undersigned to not only ignore the language of the Stipulation, but, in addition, to overlook the fact that it is two corporations, WPAS and DAB (not Jack A. Bowshier, Sr.) that have applied for these licenses. This the undersigned cannot do. See Florida Real Estate Commission v.
Shealy, 647 So. 2d 151, 152 (Fla. 1st DCA 1994)("Although the appellee and the corporation were found to be 'one and the same entity' based on the appellee's control of the business, the statute [Section 57.111, Florida Statutes] does not permit such disregard of the corporate form."); Woods v. Greater Naples Care Center, 406 So. 2d 1172, 1173 (Fla. 1st DCA 1981)("A stipulation cannot be extended to embrace matters not included in the stipulation."); Ed Skoda Ford, Inc. v. P & P Paint and Body Shop, Inc., 277 So. 2d 818, 819 (Fla. 3d DCA 1973)("[T]he officers of the plaintiff corporation cannot avail themselves of the corporate shield when it suits their purpose and discard the same when it does not appear advantageous."). Moreover, even, assuming arguendo, that, as the Bowshiers contend, the Department, in Administrative Proceeding Nos. 4287-F-11/95,
4287a-F-11/95, and 4287b-F-1195, agreed that WPAS and DAB should
receive the MVRIS licenses they are now seeking, the Department would not be barred from denying WPAS's and DAB's applications for licensure based upon the unlawful conduct (described above) in which WPAS and DAB engaged subsequent to the entry of the Final Order in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195. See University Hospital, Ltd. v. Agency for Health Care Administration, 697 So. 2d 909, 912 (Fla. 1st DCA 1997)("We note that collateral estoppel 'does not apply where unanticipated subsequent events create a new legal situation.'"); Holiday Inns, Inc. v. City of Jacksonville, 678
So. 2d 528, 529 (Fla. 1st DCA 1996)("Res judicata (and collateral estoppel) 'is applicable to rulings or decisions of administrative bodies . . . unless it can be shown that since the earlier ruling thereon there has been a substantial change of circumstances relating to the subject matter with which the ruling was concerned sufficient to promote or prompt a different or contrary determination.'").
| Issue Date | Proceedings |
|---|---|
| Jul. 06, 1998 | Final Order and Notice of Rights filed. |
| Jun. 12, 1998 | (Bruce Wilkinson) Notice of Appearance; (Petitioner) Motion for Extension of Time in Which to File Exceptions (filed via facsimile). |
| May 28, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 02/05-06/98. |
| May 15, 1998 | Letter to K. Rosen & CC: T. Juergens from Judge Lerner (& Enclosed Copy of Final Argument of Petitioners and Recommended Orders) sent out. |
| May 11, 1998 | (Respondent) Proposed Recommended Final Order filed. |
| May 11, 1998 | Final Argument of Petitioners and Recommended Orders filed. |
| Mar. 17, 1998 | Transcript of Proceedings (Volumes I, II, III, IV, tagged) filed. |
| Feb. 06, 1998 | (Bowshier) Exhibit (filed via facsimile). |
| Feb. 05, 1998 | Video Hearing Held; see case file for applicable time frames. |
| Feb. 04, 1998 | Order sent out. (Bowshier`s Motion to Compel Production of Records is Denied) |
| Feb. 03, 1998 | Letter to SML from Jack Bowshier (RE: motion to compel production of records) (filed via facsimile). |
| Feb. 02, 1998 | Department`s Exhibit List; (2 Notebooks) Exhibits filed. |
| Jan. 30, 1998 | Order sent out. (department`s amended motion for partial summary final order is denied) |
| Jan. 30, 1998 | Joint Prehearing Stipulation (filed via facsimile). |
| Jan. 30, 1998 | Department`s Amended Motion for Partial Summary Final Order (filed via facsimile). |
| Jan. 28, 1998 | Order sent out. (parties` joint prehearing stipulation due by 1/30/98) |
| Jan. 28, 1998 | Joint Motion for Extension of time to file prehearing stipulation, Letter to Judge Lerner from Jack Bowshier (re: objecting to motion filed by banking and finance requesting partial summary final order) (filed via facsimile). |
| Jan. 27, 1998 | Department`s Motion for Partial Summary Final Order (filed via facsimile). |
| Jan. 26, 1998 | Department`s Notice of Cancellation of Taking Deposition upon Allison L. Weaver (filed via facsimile). |
| Jan. 23, 1998 | Department`s Notice of Production of Summary Evidence (filed via facsimile). |
| Jan. 23, 1998 | Department`s Notice of Taking Deposition upon Stuart Buick, Pontiac, GMC, Inc. & William A. Chamberlain (filed via facsimile). |
| Jan. 23, 1998 | Order sent out. (parties` joint prehearing stipulation to be filed by 1/28/98) |
| Jan. 23, 1998 | Letter to SML from J. Bowshier Re: Requesting a two day extension to file Prehearing stipulation (filed via facsimile). |
| Jan. 16, 1998 | Department`s Amended Notice of Taking Deposition Upon Respondents Jack D. Bowshier, JR. & Jack A. Bowshier, Sr. (filed via facsimile). |
| Jan. 15, 1998 | Order sent out. (T. Juergens Accepted as Qualified Representative) |
| Jan. 15, 1998 | Department`s Amended Notice of Taking Deposition Upon Christine H. Casale (filed via facsimile). |
| Jan. 14, 1998 | Motion for Appointment of U. Timothy Juergens, Attorney at Law, Springfield, Ohio, as Counsel for Jack A. Bowshier, et al.; Affidavit in Support of Motion for Appointment of U. Timothy Juergens as Qualified Representative (filed via facsimile) rec`d |
| Jan. 08, 1998 | Department`s Amended Notice of Taking Deposition Upon Respondent Todd Bowshier (filed via facsimile). |
| Jan. 02, 1998 | Department`s Notice of Cancellation of Deposition Upon Respondent Todd Bowshier (filed via facsimile). |
| Dec. 23, 1997 | Department`s Notice of Taking Deposition Upon Respondent, Jack D. Bowshire, Jr.; Department`s Notice of Taking Deposition of Jack A. Bowshier, Sr. filed. |
| Dec. 23, 1997 | Department`s Notice of Taking Deposition Upon Respondent DAB, Inc. d/b/a Stuart Motors; Department`s Notice of Taking Deposition Upon Respondent WPAS, Inc. d/b/a Palm Beach Motors filed. |
| Dec. 23, 1997 | Department`s Notice of Taking Deposition Upon Connie D. Major; Department`s Notice of Taking Deposition Upon Karen E. Lynch; Department`s Notice of Taking Deposition Upon Christine H. Casale filed. |
| Dec. 23, 1997 | Department`s Notice of Taking Deposition Upon Respondent Todd Bowshier; Department`s Notice of Taking Deposition Upon Susan S. Klee; Department`s Notice of Taking Deposition Upon Allison L. Weaver filed. |
| Dec. 23, 1997 | Department`s Notice of Summary Evidence filed. |
| Dec. 22, 1997 | Order sent out. (Motion for Leave to Amend Notices of Intent to Deny Applications for Motor Vehicle Retail Installment Seller License and to Amend Administrative Complaint for Imposition of Sanctions and Notice of Rights (Motion) granted.) |
| Dec. 18, 1997 | Letter to SML from Jack Bowshier (RE: response to motion for leave to amend) (filed via facsimile). |
| Dec. 10, 1997 | (Respondent) Motion for Leave to Amend Notices of Intent to Deny Applications for Motor Vehicle Retail Installment Seller License and to Amend Administrative Complaint for Imposition of Sanctions and Notice of Rights filed. |
| Dec. 03, 1997 | Department`s Notice of Substitution of Counsel filed. |
| Oct. 15, 1997 | Notice of Hearing by Video Teleconference sent out. (Video Final Hearing set for Feb. 5-6 & 9, 1998; 9:15am; WPB & Tallahassee) |
| Oct. 15, 1997 | Letter to SML from J. Bowshier Re: Establishing hearing dates filed. |
| Oct. 09, 1997 | Order sent out. (T. Juergens Not Accepted as Qualified Representative) |
| Oct. 08, 1997 | Letter to SML from Jack Bowshier (RE: permission to have Timothy Juergens as qualified representative) (filed via facsimile). |
| Oct. 07, 1997 | Joint Response to Order (filed via facsimile). |
| Sep. 26, 1997 | Order Granting Motion to Extend Abatement sent out. (parties to file status report by 10/6/97) |
| Sep. 26, 1997 | (Respondent) Motion to Extend Abatement (filed via facsimile). |
| Sep. 15, 1997 | Order Granting Motion to Abate sent out. (hearing cancelled; parties to file status report by 9/22/97) |
| Sep. 11, 1997 | (Respondent) Motion to Abate filed. |
| Aug. 20, 1997 | Order Granting Motion to Change Venue sent out. |
| Aug. 20, 1997 | Amended Notice of Hearing sent out. (hearing set for Sept. 15-17, 1997; 9:30am; WPB) |
| Aug. 12, 1997 | (Respondent) Motion to Change Venue filed. |
| Aug. 06, 1997 | Notice of Hearing sent out. (hearing set for Sept 15-17, 1997; 9:15am; Tallahassee) |
| Jul. 18, 1997 | Department of Banking and Finance Status Report (filed via facsimile). |
| Jun. 25, 1997 | Order sent out. (hearing cancelled; Greenberg Traurig Granted Leave to Withdraw as Counsel; parties to file status report by 7/18/97) |
| Jun. 12, 1997 | Amended Motion to Withdrawal as Counsel and Motion to Continue (filed via facsimile). |
| Jun. 11, 1997 | Order sent out. (motion to continue is denied; re: withdrawal as counsel) |
| Jun. 11, 1997 | (Petitioner) Notice of Withdrawal as Counsel and Motion to Continue (filed via facsimile). |
| May 14, 1997 | Notice of Hearing sent out. (hearing set for July 1-2, 1997; 9:15am; Tallahassee) |
| May 14, 1997 | Joint Response to Department`s First Set of Interrogatories filed. |
| May 14, 1997 | Joint Response to Department`s First Request for Production of Documents filed. |
| May 14, 1997 | Joint Response to Department`s First Requests for Admissions filed. |
| May 05, 1997 | Order Granting Continuance sent out. (hearing cancelled & will be reset) |
| Apr. 28, 1997 | (Respondent) Motion for Continuance filed. |
| Feb. 07, 1997 | Department`s Request for Production to Respondent`s WPAS, Inc. d/b/a Palm Beach Motors, DAB, Inc. d/b/a Stuart Motors, Inc., Jack A. Bowshier, Sr., Jack D. Bowshier, Jr. and Todd Bowshier (for Case no. 96-5525) filed. |
| Feb. 07, 1997 | Department`s Request for Admissions to WPAS, Inc. d/b/a Palm Beach Motors, DAB, Inc. d/b/a Stuart Motors, Inc., Jack A. Bowshier, Sr., Jack D. Bowshier, Jr. and Todd Bowshier (for Case no. 96-5525) filed. |
| Feb. 07, 1997 | Notice of Service of Department`s First Set of Interrogatories of Respondents WPAS, Inc. d/b/a Palm Beach Motors, DAB, Inc. d/b/a Stuart Motors, Inc., Jack A. Bowshier, Sr., Jack D. Bowshier, Jr. and Todd Bowshier (for Case no. 96-5525) filed. |
| Feb. 07, 1997 | Department`s Request for Admissions to WPAS, Inc. d/b/a Palm Beach Motors, DAB, Inc. d/b/a Stuart Motors, Inc., Jack A. Bowshier, Sr., JackD. Bowshier, Jr. and Todd Bowshier; Department`s Request for Production to Respondent`s WPA S, Inc. d/b/a Palm Bea |
| Feb. 07, 1997 | Notice of Service of Department`s First Set of Interrogatories of Respondents WPAS, Inc. d/b/a Palm Beach Motors, DAB, Inc. d/b/a Stuart Motors, Inc., Jack A. Bowshier, Sr., Jack D. Bowshier, Jr. and Todd Bowshier filed. |
| Feb. 07, 1997 | Department`s Request for Production to Respondent`s WPAS, Inc. d/b/a Palm Beach Motors, DAB, Inc. d/b/a Stuart Motors, Inc., Jack A. Bowshier, Sr., Jack D. Bowshier, Jr. and Todd Bowshier (for Case no. 96-4971) filed. |
| Feb. 07, 1997 | Department`s Request for Admissions to WPAS, Inc. d/b/a Palm Beach Motors, DAB, Inc. d/b/a Stuart Motors, Inc., Jack A. Bowshier, Sr., Jack D. Bowshier, Jr. and Todd Bowshier (for Case no. 96-4971) filed. |
| Feb. 07, 1997 | Notice of Service of Department`s First Set of Interrogatories of Respondents WPAS, Inc. d/b/a Palm Beach Motors, DAB, Inc. d/b/a Stuart Motors, Inc., Jack A. Boshier, Sr., Jack D. Bowshier, Jr. and Todd Bowshier (for Case no. 96-4971) filed. |
| Feb. 04, 1997 | Notice of Hearing sent out. (hearing set for May 28-29, 1997; 9:15am; Tallahassee) |
| Feb. 04, 1997 | Order Granting Continuance sent out. (4/24/97 hearing cancelled) |
| Jan. 31, 1997 | Joint Motion for Continuance filed. |
| Jan. 27, 1997 | Notice of Hearing sent out. (hearing set for April 24-25, 1997; 9:15am; Tallahassee) |
| Jan. 17, 1997 | Joint Response to Order Granting Continuance filed. |
| Jan. 08, 1997 | (Department) Motion for Continuance filed. |
| Jan. 08, 1997 | Order Granting Continuance sent out. (parties to file hearing information by 1/20/97) |
| Dec. 31, 1996 | (From M. Raymaker) Notice of Substitution of Counsel filed. |
| Dec. 27, 1996 | Order sent out. (motion for entry of summary final order is denied; motion to dismiss is denied) |
| Dec. 10, 1996 | (Banking & Finance) Amended Motion to Dismiss/Motion for Summary Final Order DOAH Case #`s 96-4970, 96-4971 (as to certificate of service only) (filed via facsimile). |
| Dec. 09, 1996 | (Banking & Finance) Motion to Dismiss/Motion for Summary Final Order DOAH Case #`s 96-4970, 96-4971; Final Order; (Joint) Stipulation for Settlement and Consent to Final Order (filed via facsimile). |
| Dec. 03, 1996 | Joint Response to Initial Order (filed via facsimile). |
| Nov. 26, 1996 | Order Requiring Prehearing Stipulation sent out. |
| Nov. 26, 1996 | Order of Consolidation and Notice of Hearing by Video Teleconference sent out. (Consolidated cases are: 96-4970, 96-4971 & 96-5525; Video Hearing set for March 11-14, 1997; 9:15am; WPB & Tallahassee) |
| Nov. 07, 1996 | Joint Response to Initial Order (filed via facsimile). |
| Oct. 28, 1996 | Initial Order issued. |
| Oct. 23, 1996 | Agency Referral Letter; Petition for Formal Hearing (Exhibits); Agency Action Letter (filed via facsimile). |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 02, 1998 | Agency Final Order | |
| May 28, 1998 | Recommended Order | Engaging in business of motor vehicle retail installment seller without license and charging excessive interest rates warrants denial of licensure and imposition of fines. |
