STATE OF FLORIDA DEPARTMENT OF STATE

DEPARTMENT OF STATE, DIVISION OF LICENSING,

Petitioner,

v. CASE NO.: C98-01146

R91-00128

TARCO RECOVERY, INCORPORATED, CD1998-0329 CARLOS D. OOTEN, DESIGNATED MANAGER,

Respondent.

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FINAL ORDER

This cause came before the Department of State, Division of Licensing, for consideration and final agency action. A formal administrative hearing was conducted pursuant to Section 120.57(1), Florida Statutes, on August 9,1999 and October 14, 1999 by video teleconference at sites in Miami and Tallahassee, Florida before Stuart M. Lerner, a duly assigned Administrative Law Judge of the Division of Administrative Hearings. A Recommended Order was submitted by the Administrative Law Judge on January 28, 2000, a copy of which is attached. Respondent timely filed exceptions.

RULINGS ON EXCEPTIONS

Respondent excepts to Paragraph 22 of the Administrative Law Judge's Finding of Fact. Respondent's exception is rejected.

Mr. Ooten is not disputing that he did not obtain a branch office agency license in Tampa. The branch office definition, in the "General Provisions" section of Chapter 493, Florida Statutes, is a general definition, as the Division regulates private investigative and security agencies in addition to recovery agencies. Section 493.6401 (2), Florida Statutes, clearly states that each "branch office" of a Class "R" agency shall have a Class "RR" license. It is disingenuous, and the Administrative Law Judge also so concluded in Paragraph 70 of the Conclusions of Law, to suggest that Mr. Dube's agency was a branch office of Tarco, albeit unlicensed, based on the fact that Section 493.6118(1)(g), Florida Statutes, allows the Department to discipline unlicensed branch offices. A branch office is not a branch office unless it is licensed as such. An agency is afforded wide discretion in interpreting the statutes it is

charged with enforcing and its interpretation is entitled to great deference unless clearly erroneous. Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528 (Fla. 1st DCA 1996).

Respondent failed to present at hearing, or in these exceptions, any evidence or arguments to show that the Division's interpretation is clearly erroneous.

Assuming arguendo that Mr. Dube's agency was a branch office of Tarco, which argument the Administrative Law Judge found unpersuasive, Tarco submitted no clear and convincing evidence, documentary, testimony or otherwise, to indicate that Mr. Dube's agency was ever "Tarco-Tampa". As for Mr. Maeve's testimony, the record reflects that on cross-examination he answered that it was "very possible" that he could have been given a telephone number and that it may not have been Mr. Dube on the telephone. The record also reflects that Mr. Dube testified he did not recall ever representing his office to be "Tarco-Tampa." It is an Administrative Law Judge's function to sort-out the evidence presented, resolve conflicts in the evidence, judge credibility of the witnesses, draw permissible inferences from the evidence and reach ultimate findings of fact based on competent, substantial evidence. Heifetz v.Department of Business Regulation, 475 So. 1277 (Fla. 1st DCA 1985). Thus, the Administrative Law Judge was entitled as the fact finder to give more weight or credibility to the testimony of one witness over another and to weigh all the evidence presented to finally resolve the facts of the case.

Respondent excepts to Paragraphs 23 through 27 of the Administrative Law Judge's Findings of Fact. This exception is rejected for the same reasons discussed in the first paragraph of this section as Respondent is again raising the issue that Mr.

Dube's agency was a "branch office" of Tarco. Respondent's state of mind is irrelevant as a branch office is not a branch-office unless it is licensed as such.

Respondent excepts to Paragraph 37 of the Administrative Law Judge's Finding of Fact. This exception is rejected, pursuant to Heifetz above, as it is clear that the weight or credibility to be afforded testimony is solely within the province of the Administrative Law Judge and it was well within his province not to give weight, credibility or relevance to Mr. Bressler's testimony. Mr. Bressler's testimony was irrelevant as the form, which was simple, asked where the vehicles were and the evidence showed that the Respondent stated the vehicles were in Miami when he knew that they were not. However, the record reflects that on cross examination Respondent's own expert witness, Mr. Bressler, stated that Respondent made a false statement on the form if Respondent did not have possession of

the subject vehicle at any time, a fact which Respondent does not dispute.

Respondent excepts to Paragraph 43 of the Administrative Law Judge's Findings of Fact. This exception is also rejected based on the holding in Heifetz. Respondent's state of mind is irrelevant. Evidence was clear and convincing that Respondent had not incurred the storage charges as he had not been charged as of that date by Mr. Dube.

Respondent excepts to Paragraph 68 of the Administrative Law Judge's Conclusions of Law. This exception is rejected. Testimony is not the only evidence of a violation. The Administrative Law Judge had competent substantial evidence from documents entered into evidence to support his findings. Mr.

Ooten's state of mind is irrelevant to the violation. The de facto branch agency argument again raised by Respondent is again rejected for the reasons discussed in the first paragraph of this section.

Respondent excepts to Paragraph 69 of the Administrative Law Judge's Conclusions of Law. This exception is rejected. The Respondent appears to be challenging the Division's interpretation of the law but falls short of indicating how the Division's interpretation is clearly erroneous as required by Whitaker. Also, the administrative action in this matter resulted from the way that Respondent sold the cars at issue in this case and the Administrative Law Judge's Conclusion of Law does not state that a recovery agent must continue to store a vehicle forever.

Respondent excepts to Paragraph 70 of the Administrative Law Judge's Conclusions of Law. This exception is rejected as discussed in the first paragraph in this section as Respondent is again raising the branch agency argument and has failed

to demonstrate that the Division's interpretation is clearly erroneous as required by Whitaker.

Respondent excepts to Paragraph 71 of the Administrative Law Judge's Conclusions of Law. This exception is rejected.

Respondent is again raising the branch office argument which has been ruled on in the first paragraph above. Mr. Ooten's state of mind is irrelevant as discussed above as the evidence was clear and convincing that when he submitted the forms he knew the subject vehicles were in Tampa and not in Miami. The Administrative Law Judge was free to afford whatever weight he deemed appropriate to Ms. Cogburn's testimony and chose to believe that she may not have given all relevant information to the Department of Highway Safety and Motor Vehicles. The Administrative Law Judge did not declare any agreement between

Tarco and Mr. Dube void, he merely held that Mr. Dube's agency was not a branch office of Tarco. Finally, Chapter 493, Florida Statutes, is very broad and applies to activities of a recovery agent while involved in regulated activities as well as those activities which may fall outside activities related to repossession, such as commission of an act of violence and other activities set forth in Section 493.6118(1), Florida Statutes.

However, in this case, sale of the vehicles was in connection with activities regulated under Chapter 493, Florida Statutes, as the authority to repossess the vehicles was given by the lienholder to Respondent and Respondent's involvement in the sale of those vehicles constitutes misconduct.

Respondent excepts to Paragraph 72 of the Administrative Law Judge's Conclusions of Law. This exception is rejected. The Administrative Law Judge had substantial competent evidence to conclude that the Division established by clear and convincing evidence the allegations in Counts III and V through XVII of the Amended Administrative Complaint. Respondent's subparagraphs lettered "a" through "d" have already been addressed above.

Petitioner was not required to prove fraud, deceit or neglect as the statute Petitioner was proceeding under, Section 493.61 18(1)(f), Florida Statutes, also uses "misconduct" and allows Petitioner to prove either misconduct, negligence, fraud or deceit. Again, pursuant to Heifetz, it is ultimately within the Administrative Law Judge's province to finally determine the facts of the case and those findings cannot be disturbed unless there is no competent substantial evidence to support his findings.

Respondent excepts to Paragraphs 77-79 of the Administrative Law Judge's Conclusions of Law. This exception is rejected. The Administrative Law Judge had the authority to consider the aggravating and mitigating factors set forth in Rule 1C3.113(5), Florida Administrative Code. It appears from the language of the Recommended Order that the Administrative Law Judge found both aggravating and mitigating factors. The Administrative Law Judge did not specifically list all of the factors so there is nothing to indicate that he did not consider Respondent's state of mind. However, Respondent's state of mind is irrelevant to the allegations that Respondent committed misconduct in the course of regulated activity.

FINDINGS OF FACT

The Department of State hereby adopts and incorporates herein by reference the Findings of Fact in the Recommended Order.

CONCLUSIONS OF LAW

The Department of State hereby adopts and incorporates herein by reference the Conclusions of Law in the Recommended Order with the exception of Conclusion of Law Paragraph 79 which is amended to clarify that under Section 493.61 18(7), Florida Statutes, revocation of a license is not permanent; rather, a licensee is ineligible to reapply for the same class of license for a period of one year following the final agency action resulting in the revocation of a license.

WHEREFORE, based on the foregoing, and a complete review of the record, it is ORDERED that Respondent's Class "R" Recovery Agency license, Number R91-00128, Class "E" Recovery Agent license, Number 1.91-00036, and Class "C" Private Investigator license, Number C91-00210, are REVOKED pursuant to Section 493.6118(2)(e), Florida Statutes. Further, it is ORDERED that Respondent shall CEASE AND DESIST engaging in activities regulated by Chapter 493, Florida Statutes, and the licenses shall immediately be returned to the Department pursuant to Section 493.6118(5), Florida Statutes.

It is further ORDERED that Respondents pay an administrative fine in the amount of $4,200.00 by cashier's check or money order to the Department of State, Division of Licensing within thirty (30) days. Failure to timely make payment shall result in the automatic suspension of any licenses issued to Respondent or the denial of any licenses applied for pursuant to Section 493.6118(6), Florida Statutes.

The reasons for deviation from the Administrative Law Judge's recommendation are as follows:

1. The Administrative Law Judge in Conclusions of l aw Paragraph 78 found aggravating circumstances.

   
   

2. The Administrative Law Judge in Conclusions of Law Paragraph 79 found that the violations by Mr. Ooten were serious and cast doubt on Mr. Ooten's trustworthiness. It is of utmost concern to the Division of Licensing that licensees, and most especially those licensees holding agency licenses, possess good moral character as they are dealing with the public. As the Administrative Law Judge found Mr. Ooten committed the violations alleged in the Amended Administrative Complaint and found them to be aggravating and serious, the Division has the discretion to revoke or to suspend his licenses pursuant to Section 493.61 18(2), Florida Statutes.

3. The Administrative Law Judge in Conclusions of Law Paragraph 79 was of the mistaken belief that revocation was permanent; however, as clarified in the Conclusions of Law above, Mr. Ooten is eligible to reapply for a license one year from the date of this Final Order.

NOTICE OF RIGHTS

This Order constitutes final agency action. Any party who is adversely affected by the Order may seek judicial review under Section 120.68, Florida Statutes. Such proceedings are commenced by filing a Notice of Appeal, pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Deputy Clerk of the Division of Licensing, Department of State, The Capitol, Mail Station #4, Tallahassee, Florida 32399-0250; and by filing a copy of the Notice of Appeal, accompanied by the Applicable filing fees, with the First District Court of Appeals, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty

(30) days of the date this Order is filed with the Clerk of the Department.

DONE AND ORDERED at Tallahassee, Florida this 13th day of April, 2000.

John M. Russi, Director Division of Licensing

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by U.S. Mail this 13th day of April, 2000 to James

S. Newell, Esquire, 1641 Northwest 63rd Avenue, Sunrise, Florida 33313.

Michele Guy

Assistant General Counsel Department of State Division of Licensing

The Capitol, MS #4

Tallahassee, Florida 32399-0250

(850) 487-0482

Copies Furnished To: Filed with the Agency Clerk

Docket for Case No: 99-000748

Orders for Case No: 99-000748