STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY )

SAFETY AND MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5149

)

CHARLES W. ANTOLICK d/b/a )

C. ANTOLICK CAR AND TRUCK SALES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on February 6, 1997, in Gainesville, Florida.

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Neil Kirkman Building, Room 432A Tallahassee, Florida 32399-0504

For Respondent: Charles W. Antolick, pro se

22 Comanche Trail

Gainesville, Florida 32640-3736 STATEMENT OF THE ISSUE

The issue is whether respondent's independent motor vehicle license should be disciplined for the reasons set forth in the administrative complaint filed on September 6, 1996.

PRELIMINARY STATEMENT

This matter began on September 6, 1996, when petitioner,

Department of Highway Safety and Motor Vehicles, issued an administrative complaint against respondent, Charles W. Antolick d/b/a C. Antolick Car and Truck Sales, alleging that in 1995 respondent failed to apply for registration and title on two used automobiles sold to consumers. By letter dated September 18, 1996, respondent requested a formal hearing under Section 120.57(1), Florida Statutes, to contest the charges. The matter was referred by petitioner to the Division of Administrative Hearings on November 4, 1996, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated November 19, 1996, a final hearing was scheduled on January 27, 1997, in Gainesville, Florida. Respondent's unopposed request for a continuance was granted, and the matter was rescheduled to February 6, 1997, at the same location.

At final hearing, petitioner presented the testimony of Patricia L. McClellan, an agency compliance examiner; and Florrie

1. Mingo and Devon T. Ross, who allegedly purchased cars from respondent. Also, it offered petitioner's exhibits 1-4. All exhibits were received in evidence. Respondent testified on his own behalf and presented the testimony of James F. Chapman, an acquaintance; and Rose Bucklen, a title clerk with Big Sun Auto Auction. Also, he offered respondent's exhibits 1-6. All exhibits were received in evidence.

   The transcript of hearing was filed on March 3, 1997.

   Proposed findings of fact and conclusions of law were filed by petitioner on March 13, 1997, and they have been considered by the undersigned in the preparation of this Recommended Order.

   FINDINGS OF FACT

   
   

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

   1. Background

      
      

      1. At all times relevant hereto, respondent, Charles W. Antolick, operated an independent automobile dealership under the name of C. Antolick Car & Truck Sales at 7400 Highway 21, Keystone Heights, Florida. He has been issued independent motor vehicle dealer license number VI-10846 by petitioner, Department of Highway Safety and Motor Vehicles (Department). That license authorizes respondent to engage in the business of buying, selling, or dealing in motor vehicles.

      2. Based on complaints received in June 1996 from two consumers, Florrie B. Mingo and Devon T. Ross, the Department conducted an investigation of respondent. The Department then issued an administrative complaint on September 5, 1996, alleging that respondent failed to apply for registration and title for two used automobiles sold by him to Mingo and Ross in November 1995. Respondent denies that his dealership sold the vehicles. Except for the allegations raised in this proceeding, respondent has an unblemished record as a licensee.

   2. An Employee Named Pettway

      1. In 1995, Gregory A. Pettway, a resident of Gainesville, Florida, was employed by respondent as a mechanic. Effective July 19, 1995, Pettway was authorized to "buy/sell vehicles under (respondent's) license at Big Sun Auto Auction," an automobile wholesaler and auctioneer in Ocala, Florida. This authorization only enabled Pettway to buy cars on a wholesale basis on the premises of Big Sun Auto Auction. Pettway also held similar authorization to purchase cars at a Jacksonville car auction.

      2. A disputed fact in this case is whether Pettway was authorized to sell cars on behalf of respondent on a retail basis, that is, to persons such as Mingo and Ross. To establish that fact, petitioner relies upon a letter dated June 5, 1996, from respondent’s wife to Frank Heath, a Department employee based in Ocala, Florida. In the letter, she stated that “it was always customary for me to give Greg Pettway a receipt every time he would turn in a contract and pay tax and title for his customer.” Although received in evidence as a part of petitioner’s composite exhibit 2, the statement was not clarified or explained at hearing even though the wife was present, and it was not used by petitioner when respondent was cross-examined. Given respondent’s contrary testimony at hearing, which was not seriously challenged, his testimony is accepted as being the most credible and persuasive on this issue. Accordingly, it is found that Pettway was not authorized to sell vehicles for respondent on a retail basis.

      3. In Pettway's role as respondent's representative at auctions, he would attend and bid on cars, and if successful, he would then transport the car to respondent's car lot in Keystone Heights. After a car was purchased, Pettway was instructed by respondent to turn over all paperwork related to the purchased vehicle.

      4. It can be reasonably inferred from the evidence that, although he was not authorized to sell cars on a retail basis, Pettway had access to respondent's bill of sale forms and, without respondent's knowledge, he took a number of them for his own use. He used two such forms in conjunction with the Mingo and Ross transactions. After learning that Pettway had made these two unauthorized sales, respondent terminated Pettway’s employment in January 1996.

      5. Although the evidence shows that Pettway still resides in Gainesville, it is surprising that neither party subpoenaed him to attend the final hearing. Therefore, any statements allegedly made by Pettway are hearsay in nature and cannot be used to make findings of fact.

   3. The Mingo Transaction

      
      

      1. Mingo is a resident of Brooker, Florida. Through a mutual friend, she was introduced to Pettway and learned that he sometimes went to car auctions. Mingo was interested in purchasing a 1985 Cadillac and was led to believe that Pettway could obtain one at a fair price. Accordingly, one evening in

         September 1995 she and Pettway traveled to a Jacksonville car auction. Respondent had authorized Pettway to attend the auction, but he was unaware of Pettway's efforts to buy a car for Mingo. Although Pettway purchased two cars that evening, he was unsuccessful in locating a 1985 Cadillac.

      2. On October 4, 1995, respondent, Pettway, and Mingo traveled together in Pettway's truck to Big Sun Auto Auction. Respondent was under the impression that Mingo was Pettway's girlfriend and was merely accompanying him to the auction. At the auction, Mingo saw a violet colored 1985 Cadillac and asked Pettway to bid on the vehicle. After Pettway made a successful bid, Mingo paid Pettway $1,500.00 cash as a deposit, and Pettway gave her a receipt. It is fair to infer that Pettway used all or part of Mingo's money to pay for the vehicle and pocketed the remainder, if any, as profit. There is no evidence that respondent was aware of the transaction, and he did not authorize Pettway to sell the car to Mingo under his dealer's license.

      3. Big Sun Auto Auction requires that all bidders sign a log book to evidence each car sale. That evening, Pettway placed his initials on the log book to indicate that he had received the paperwork for Mingo’s vehicle from the auctioneer.

      4. Respondent also purchased a car that evening and drove the car back to his dealership. Meanwhile, Pettway transported Mingo’s vehicle to Gainesville on his truck. The vehicle was never taken to respondent's lot.

      5. On November 8, 1995, Mingo gave Pettway another $684.00 making a total purchase price of $2184.00. This amount included a sales price of $1900.00, sales tax of $114.00, and tag, title and miscellaneous fees of $170.00. Pettway obviously earned a profit on the transaction.

      6. The bill of sale given by Pettway to Mingo on November

         
         

         8 was on respondent's bill of sale form and contains Pettway's signature as "agent." Respondent did not sign the form and was unaware of the transaction. Mingo was led to believe that she would receive her title, tag and "paperwork" within a few weeks.

      7. Pettway never turned over any money or paperwork to respondent regarding the Mingo transaction. Also, he never disclosed the sale to respondent.

      8. When Mingo was unable to obtain a title or registration for the vehicle from Pettway, she contacted respondent, whose name was on the bill of sale. Until then, it is fair to infer that Mingo always considered the transaction to be a private one with Pettway, and not respondent. Indeed, the transaction was consummated at Pettway’s home, and not on the dealer’s licensed premises.

      9. Respondent was understandably reluctant to furnish paperwork for a transaction in which he did not participate. Even so, at the urging of the Department, respondent and Mingo met at a local tag office in June 1996 for the purpose of seeking to reach an amicable settlement. When Mingo declined to provide

         respondent with an original copy of the bill of sale, he balked at filling out the necessary paperwork for a title. An argument ensued, an agreement was never reached, and Mingo did not receive her title. The present status of the vehicle is not of record.

         
         

   4. The Ross Transaction

1. In late October 1995, or just before Mingo made the final payment on her vehicle to Pettway, she asked him to locate a car for her nephew, Devon T. Ross. By chance, on October 4, 1995, Pettway had purchased a 1980 Oldsmobile Cutlass from Big Sun Auto Auction for $460.00 and had it parked at his house in Gainesville. On November 7, 1995, Pettway received a title to the vehicle from Big Sun Auto Auction and signed the auctioneer's log that date to acknowledge receipt of same. Pettway never told respondent that he had purchased this vehicle.

2. In late October or early November 1995, Devon and his father, Johnny G. Ross, went to Pettway's house and inspected the car. Devon agreed to purchase it for $1670.00, which included a

   $1500.00 sales price, $90.00 for sales tax and $80.00 for tag, title and miscellaneous fees. On November 6, 1995, Pettway drove the car to Devon’s house where his mother paid Pettway the full price in cash. Respondent was unaware of this transaction, and he had not authorized Pettway to sell the vehicle under his license. It is fair to infer that when Devon entered into negotiations with Pettway to buy the car, he considered this to

   be a private transaction between he and Pettway, and not with respondent's dealership.

3. Devon was given a bill of sale filled out on one of respondent's forms. Pettway signed the form as seller while both Devon and his father are listed as the co-owners. Devon was led to believe that he would receive the title within a few days. Pettway did not turn over any money or paperwork regarding the transaction to respondent.

4. After Devon did not receive a title within a reasonable period of time, his mother attempted to contact Pettway on numerous occasions by telephone. Pettway, however, would not return her calls. Devon's mother then contacted respondent in December 1995 regarding the status of her son's title. Although respondent was unaware of the sale, he agreed to contact Big Sun Auto Auction and make inquiry regarding the status of the title. Throughout the months of January through April 1996, respondent continued these efforts. This was corroborated by testimony from a Big Sun Auto Auction title clerk. In April 1996, the auctioneer finally confirmed that, according to its sign-off log, the title had been picked up by Pettway in November 1995.

5. On January 17, 1996, the title to Devon’s vehicle was sent by an unidentified person to the Department's Tallahassee office with a request that the automobile be "junked." Department regulations do not require that the person requesting such action be identified. It is noted, however, that Pettway

   had been given the title on November 7, 1995, and had never turned it over to respondent. In accordance with this anonymous request, the Department junked the title on January 17, 1996. Respondent was unaware that this action was taken.

6. In February 1996, Devon was rear-ended by another vehicle and his car was totaled. He was offered $1000.00 by the other driver's insurance company as settlement, but he was required to produce a title in order to collect the money. Because he had never been issued a title, the insurance company declined to make a settlement.

7. In an effort to resolve this matter, on July 11, 1996, respondent offered to refund Devon the money paid by Pettway ($460.00) for the vehicle if Devon would return the car to his licensed premises. Devon refused since he would be required to pay a wrecker to tow his disabled vehicle to Keystone Heights. The current status of his vehicle is not of record.

   CONCLUSIONS OF LAW

   
   

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

9. Since respondent's dealer license is at risk, petitioner bears the burden of proving by clear and convincing evidence that the charges in the complaint are true. See, e. g., Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

10. Respondent is licensed as an independent motor vehicle

    dealer under Section 320.27, Florida Statutes. Subsection (9) thereof provides the following relevant grounds under which his license may be disciplined:

    (9) The department may deny, suspend, or revoke any license issued hereunder or under the provisions of s. 320.77 or s. 320.771, upon proof that a licensee has failed to comply with any of the following provisions with sufficient frequency so as to establish a pattern of wrongdoing on the part of the licensee:

    (a) Willful violation of any law of this state, including chapter 319, this chapter, or ss. 559.901-559.9221, which has to do with dealing in or repairing motor vehicles or mobile homes or willful failure to comply with any administrative rule promulgated by the department.

    * * *

    (o) Failure to apply for transfer of a title as prescribed in s. 319.23(6).

    * * *

11. Under the foregoing statute, before a license can be suspended or revoked, it must be established by clear and convincing evidence that a licensee has violated a provision within chapters 319 and 320 "with sufficient frequency so as to establish a pattern of wrongdoing on the part of the licensee."

12. The administrative complaint alleges that respondent "failed to apply for registration and title" after the Mingo and Ross transactions. The complaint contends this constitutes a violation of Sections 319.23(6), 319.34, 320.27, and 320.27(7), Florida Statutes. The first statute requires that an "application for certificate of title . . . shall be filed within

    30 days from the delivery of such motor vehicle . . . to the

    purchaser." The second statute makes it unlawful for any person to purport to sell a motor vehicle "without delivering to the purchaser . . . a certificate of title . . . duly assigned to such purchaser as provided in this chapter." Section 320.27 is a lengthy statute governing "motor vehicle dealers," including respondent, while subsection (7) thereof requires that, for each motor vehicle in the possession of a licensee, the licensee "have reasonable indicia of ownership or right of possession, or shall have made proper application for a certificate of title in accordance with the provisions of chapter 319."

13. Under petitioner’s theory of the case, as expressed in its proposed order, Pettway was respondent’s salesman/agent, and although he may have cheated respondent by failing to turn over the money for the two sales, respondent is nonetheless responsible for Pettway’s actions, and he must comply with all relevant provisions in Chapters 319 and 320, Florida Statutes. According to petitioner, respondent has violated both Sections 319.23(6) and 320.27(o), Florida Statutes, by failing to make application for a certificate of title within thirty days of sale. Petitioner also contends that respondent has violated Section 319.34, Florida Statutes, which makes it unlawful for a dealer to sell a motor vehicle without delivering to the buyer a duly assigned certificate of title. Finally, petitioner argues that by failing to have title or other indicia of ownership for the two cars from the time of acquiring the vehicles until they

    were sold, respondent has violated Section 320.27(7), Florida Statutes, which imposes that requirement. Petitioner concludes that these violations constitute a “pattern of wrongdoing” within the meaning of the law and thus justify the revocation of respondent’s license.

14. As noted in finding of fact 4, the undersigned has found that Pettway was simply a mechanic, and not a salesman, and he was not authorized to engage in retail sales on behalf of respondent’s dealership. In paragraphs 15 and 18, the undersigned has also found that when the two transactions were consummated, the consumers believed they were dealing with Pettway privately, and not with the dealership. Therefore, as to these transactions, no agency relationship between Pettway and respondent existed.

15. In light of the foregoing, respondent’s dealership never had “possession” of the two cars in question, and thus there can be no violation of section 320.27(7). Likewise, there was no requirement that respondent “apply for transfer of a title” as required by sections 319.23(6) and 320.27(o). Therefore, the complaint should be dismissed.

16. Even assuming arguendo that an agency relationship existed between Pettway and respondent, and that respondent violated the above statutes, the two isolated incidents do not constitute “sufficient frequency so as to establish a pattern of wrongdoing on the part of the licensee.”

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order dismissing the administrative complaint with prejudice.

DONE AND ENTERED this 27th day of March, 1997, in Tallahassee, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1997.

COPIES FURNISHED:

Charles J. Brantley, Director Division of Motor Vehicles

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

Michael J. Alderman, Esquire Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room 432A Tallahassee, Florida 32399-0504

Charles W. Antolick

22 Comanche Trail

Hawthorne, Florida 32640-3736

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days. Any exceptions to this Recommended Order should be filed with the Department of Highway Safety and Motor Vehicles.

Docket for Case No: 96-005149

Orders for Case No: 96-005149