STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

) CHARLES PATRICK KUHN, III, ) d/b/a A1 AUTO AND TRUCK CENTER, )

)

Respondent. )

Case No. 04-3251

)

RECOMMENDED ORDER

1. hearing was held pursuant to notice in the above style cause by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, on December 3, 2004, in Jacksonville, Florida.

   APPEARANCES

   
   

   For Petitioner: Charles Patrick Kuhn, III, pro se

   1. Auto and Truck Center 12180-1 Philips Highway

Jacksonville, Florida 32256

For Respondent: Michael J. Alderman, Esquire

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building, Suite A432 2900 Apalachee Parkway

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether the Respondent knowingly sold rebuilt vehicles without disclosing in writing to the purchaser, customer, or transferee that the vehicles were previously titled as rebuilt vehicles.

PRELIMINARY STATEMENT

This case arose when the Department of Highway Safety and Motor Vehicles (Department) served an administrative complaint upon the Respondent alleging that he had sold two vehicles to individuals without disclosing in writing that the vehicles had been previously titled as rebuilt vehicles. The Respondent requested a formal hearing, and the Department referred the matter on September 17, 2004, to the Division of Administrative Hearings to conduct a formal hearing.

In response to the Petitioner's response to the Initial Order sent out by the Division of Administrative Hearings, the formal hearing was set in Jacksonville, Florida, on December 3, 2004. The matter was heard as noticed.

At the formal hearing, the Department presented the testimony of T. J. Norris, Aylwin S. Bridges, and Pam Albritton, and introduced Petitioner's Exhibits numbered 1 through 9, all of which were composite exhibits. The Respondent testified in his own behalf and introduced Respondent's Exhibits 1 through 8. At the conclusion of the hearing, a transcript was ordered that

was filed on December 10, 2004. On December 20, 2004, the Petitioner filed a Proposed Recommended Order that was read and

considered.

FINDINGS OF FACT

1. The Respondent, Charles R. Kuhn, III, is and was at all times relevant to the allegations in the administrative complaint a licensed independent motor vehicle dealer in Florida. The Respondent did business in the name A-1 Auto and Truck Center and was located at 12180-1 Phillips Highway, Jacksonville.

2. The Department is the state agency authorized by statutes to regulate licensed independent motor vehicle dealers and to maintain the titles of motor vehicles in the State of Florida.

3. Pam A. Albritton testified about her experiences buying a vehicle from the Respondent. On August 22, 2003, as reflected by the date on the installment sales contract, Albritton purchased a 2000 Volkswagen (VW), VIN (Vehicle Identification Number) 3 VWSD 29 M1YM 197846, for $8,281.80.

4. The Respondent did not at any time provide Albritton with a written statement that the vehicle she purchased, VIN 3 VWSD 29 M1YM 197846, hereafter the Albritton vehicle or car, was a rebuilt vehicle and had been previously titled as a rebuilt

   vehicle. The Respondent did not tell Albritton that this vehicle was a rebuilt vehicle.

5. Albritton did not see the certificate of title to the vehicle until after the sale of the vehicle.

6. Albritton took the car to an authorized VW dealer in November of 2003 because it was not shifting gears properly. The dealer found that the vehicle had suffered extreme damage from an accident and needed extensive repairs to the engine control system and the airbag in order to make the car safe to drive. The dealer told Albritton what had been found and advised her not to drive the car until it had been repaired.

7. Albritton confronted the Respondent about the problems with the vehicle, and the Respondent gave her a handwritten "warranty" dated November 20, 2003. Pursuant to this agreement, Albritton took the car to the Respondent to have the seatbelts fixed; however, the repairs did not actually make the belts safe because the seatbelt retractor mechanism would not lock.

8. In December of 2003, the wheel bearings on Albritton's car broke, and she contacted the Respondent about getting the car fixed. She was informed that the Respondent was away for two weeks, and nothing could be done until he returned.

   Needing her car for transportation in her work, she paid $200 to have the wheel bearings repaired.

9. Pursuant to a mediation agreement, Albritton agreed to settle her complaint against the Respondent on the basis that he would get her a comparable vehicle. The Respondent was supposed to contact Albritton within 30 days of the mediation but failed to do so.

10. The records introduced at hearing show that Albritton's vehicle had been re-titled as a rebuilt vehicle. Such a title indicates that the vehicle in question had been written off as an insurance loss and the original title cancelled or destroyed. Thereafter, the vehicle was repaired, and the person making the repair obtained a new title, which when issued, showed that the vehicle was rebuilt.

11. Aylwin S. Bridges testified regarding his purchase of a VW from the Respondent. On or about June 14, 2003, Aylwin S. Bridges, purchased a 2000 VW, VIN 3 VWTE 29 MXYM 135556, from the Respondent for $11,555.00.

12. Neither prior to nor at the time of the sale did the Respondent provide Bridges a written statement that the 2000 VW, VIN 3 VWTE 29 MXYM 135556, was a rebuilt vehicle. The Respondent did not tell Bridges that the car he was purchasing was rebuilt.

13. The records introduced at hearing show that the Bridges' car had been re-titled as rebuilt.

14. Bridges did not see a certificate of title to the vehicle prior to the sale of the vehicle.

15. The Bridges' vehicle had extensive mechanical problems. For example, the engine control module had been spliced into the car and several codes had been deleted from it; the seat belts would not work; and the horn would not work.

16. When Bridges sought to trade the vehicle, he found that the most he was offered for the car was only $2,500 because it was rebuilt.

17. The Respondent testified in his own behalf. He did not deny having failed to disclose to Albritton and Bridges in writing prior to selling them their cars that the vehicles had previously been titled as rebuilt vehicles. The Respondent introduced a general disclaimer, Respondent's Exhibit 7, which was provided to Albritton and Bridges. This disclaimer states that the purchaser is buying a used car and that used cars may have any one or more of the listed problems. The Respondent testified that he knew the cars were rebuilt, but felt he had complied with the legal requirements of disclosure by providing the buyers with the aforementioned disclaimer. The specifics of the disclaimer are discussed in the Conclusions of Law for purposes of continuity, but are findings of fact.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case pursuant to Section 120.569 and 120.57, Florida Statutes.

19. The business of buying, selling, offering to sell, and dealing in motor vehicles is regulated pursuant to Chapter 320, Florida Statutes and Rules 15-2.001 and 28-107.004, Florida Administrative Code. The Department is charged with the regulation of the sale of motor vehicles and those licensed to sell them. The Petitioner may suspend or revoke a motor vehicle dealer's license or impose a fine of up to $1,000 upon a licensee pursuant to Section 320.27, Florida Statutes.

20. The Department has the burden to prove the allegations of its administrative complaint by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

21. The Department alleged that the Respondent knowingly sold motor vehicles that were rebuilt to Bridges and Albritton without having disclosed to them in writing prior to the sale that the vehicles had previously been titled as rebuilt vehicles contrary to Section 319.14(2), Florida Statutes.

22. The Respondent did not deny having provided Albritton and Bridges with a written disclosure that the vehicles they were purchasing had been previously titled as rebuilt vehicles. He based his defense upon providing them a general disclaimer

    that stated in pertinent part, "Below is a list of some major defects that may occur in used motor vehicles," and then listed among fifty or more items, "regular title branded rebuilt."

23. Although arcane, this case turns upon whether the legal requirement to disclose that a vehicle being purchased was previously titled as a rebuilt vehicle is met by stating that the vehicle being purchased may have been previously titled as a rebuilt vehicle. It is concluded that, as a matter of law, the statute is not satisfied by the statement that the vehicle may have been titled as a rebuilt vehicle. Further, a reasonable man would not have concluded that the "may" statement was sufficient to meet the requirements of the Statutes. The Respondent's defense is insufficient.

24. The Department showed by clear and convincing evidence that the Respondent knowingly violated the provision of Section 319.14(2), Florida Statutes.

25. The provisions of Section 320.27(9), Florida Statutes, provide that the Department may suspend or revoke any license issued under the provisions of Sections 320.77 or 320.771, Florida Statutes, upon proof that the licensee committed a violation of Chapter 319, Florida Statutes, which has to do with dealing with motor vehicles. In addition, Section 320.27(12), Florida Statutes, provides that the Department may levy a civil

    fine of up to $1,000 for each violation of Chapter 320 or any other law of Florida relating to dealing in motor vehicles.

26. No evidence was presented of prior violations of this or any other provision of Florida Statutes relating to dealing in motor vehicles.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Department enter its final order finding that the Respondent violated Section 319.14, Florida Statutes, on two occasions; fine Respondent $1,000 for each violation; and suspend the Respondent's license for six months for each violation, said suspensions to run consecutively, and that payment of the fine be a condition precedent to re-issuance of a license.

DONE AND ENTERED this 1st day of February, 2005, in

Tallahassee, Leon County, Florida.

S

STEPHEN F. DEAN

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2005.

COPIES FURNISHED:

Charles Patrick Kuhn, III A-1 Auto and Truck Center 12180-1 Philips Highway

Jacksonville, Florida 32256

Michael J. Alderman, Esquire Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Suite A432 2900 Apalachee Parkway

Tallahassee, Florida 32399

Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Suite B439 2900 Apalachee Parkway

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-003251

Orders for Case No: 04-003251