STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing in this proceeding for the Division of Administrative Hearings (DOAH), on March 12, 2008, in Tampa, Florida.

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building, Room A-432 2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

For Respondent: Alan H. Kadesky, pro se

3 D Motors, Inc. 1333 Falkenburg Road

Tampa, Florida 33619

STATEMENT OF THE ISSUES

The issues are whether Respondent parked a motor vehicle on private property where the public has a right to travel by motor vehicle; whether Respondent displayed the motor vehicle for sale without a supplemental license for a place of business that is not contiguous to the originally licensed premises in violation of Section 316.1951 and Subsection 320.27(5), Florida Statutes (2002)1; and, if so, what penalty, if any, should be imposed.

PRELIMINARY STATEMENT

On August 28, 2007, Petitioner issued an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing. Petitioner referred the matter to DOAH to assign an ALJ to conduct the hearing.

At the hearing, Petitioner presented the testimony of one witness and submitted seven exhibits for admission into evidence. Respondent presented the testimony of one witness and submitted three exhibits for admission into evidence. The identity of the witnesses and exhibits and the rulings regarding each are reported in the Transcript of the hearing filed with DOAH on April 7, 2008. Petitioner and Respondent timely filed their respective proposed recommended orders (PROs) on April 17 and March 24, 2008.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating motor vehicle dealers in the state pursuant to Chapter 320. Respondent is licensed in the state as a motor vehicle dealer pursuant to license number VI-1005657. The licensed premises are located at 1333 Falkenburg Road, Tampa, Florida 33605.

2. On July 7, 2007, a compliance examiner observed a 1992 Mercedes Benz parked on private property owned by a bail bond company located at 1345 Falkenburg Road, Tampa, Florida. The bail bond company had been out of business for some time.

3. The vehicle was owned by the licensee and displayed one of the licensee's price stickers. The vehicle identification number is WDBFA66E0NF050462.

4. The property of the bail bond company was contiguous with the licensed premises within the meaning of

   Subsection 320.27(5). The two properties share an unimpeded common boundary, and the vehicle at issue was parked approximately 53 feet from the common boundary.

5. The property of the bail bond company was not a "permanent" additional place of business within the meaning of Subsection 320.27(5). The vehicle was parked on the property of the bail bond company temporarily. The compliance officer observed the vehicle on the property of the bail bond company

   for the period of time it required for the officer and his fellow employee to drive by the site, park, complete the paper work, and deliver it to a representative of the licensee.

6. The bail bond premises were not a place of business for Respondent. Respondent used the bail bond premises for temporary convenience to rearrange vehicles on the licensed premises.

7. The Mercedes was a new addition to inventory.

   
   

   Respondent moved the Mercedes off the licensed premises while Respondent moved other vehicles away to create space needed for Respondent to showcase the Mercedes by displaying it on the corner of the licensed premises closest to the main street, and, incidentally, a corner shared with the contiguous premises owned by the bail bond company.

8. The vehicle was not located on private property where the public has a right to travel within the meaning of Subsection 316.1951(1). The vehicle was parked on a grassy area, parallel to a row of bushes. If it were shown the public had a right to travel by motor vehicle on the driveway of the closed bail bond business, it is undisputed that the public had no right to travel by motor vehicle on the contiguous grassy area. In any event, it is less than clear and convincing that Respondent parked the vehicle on private property for the "principal purpose and intent" to display the vehicle for sale.

   CONCLUSIONS OF LAW

   
   

9. DOAH has jurisdiction over the parties and subject matter in this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007). DOAH provided the parties with adequate notice of the formal hearing.

10. The burden of proof is on Petitioner to show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of the proposed penalty. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,

    510 So. 2d 292 (Fla. 1987). For the reasons stated in the Findings of Fact, Petitioner did not satisfy the applicable burden of proof.

11. The only relevant evidence is evidence pertaining to the acts alleged in the Administrative Complaint. Disciplinary action cannot be predicated on facts not alleged in the charging documents. Ghani v. Department of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); Cotrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

12. The Administrative Complaint, in relevant part, charges that Respondent violated Subsections 320.27(5) and 316.1951(1). The former statute, in relevant part, requires Respondent to obtain a supplemental license for each "permanent"

    additional "place of business" that is "not contiguous" to the licensed premises. The latter statute, in relevant part, makes it unlawful for Respondent to park a motor vehicle on private property:

    where the public has the right to travel by motor vehicle, for the principal purpose and intent of displaying the motor vehicle thereon for sale. . . .

    
    

13. The quoted statutory terms are not defined by statute.

    
    

    The agency's interpretation of statutory terms is not infused with policy considerations and is not entitled to deference. The agency did not articulate in the record, underlying technical reasons for deference to agency expertise in the

    interpretation of statutory terms. Johnston, M.D. v. Department of Professional Regulation, Board of Medical Examiners, 456 So. 2d 939, 943-944 (Fla. 1st DCA 1984).

14. The quoted statutory terms are defined by their common, ordinary meaning. The issue of whether the acts committed by Respondent satisfied the meaning of the relevant statutory terms is a factual issue susceptible to ordinary methods of proof and within the exclusive province of the fact- finder. Cf. Gross v. Department of Health, 819 So. 2d 997, 1003 (Fla. 5th DCA 2002)(issue of whether a licensee violates the applicable standard of care is a factual issue susceptible to ordinary methods of proof).

15. The fact-finder resolved any conflicts in the evidence and decided the issue one way or the other. Dunham v. Highlands County School Board, 652 So. 2d 894, 896 (Fla. 2d DCA 1995); Heifetz v. Department of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985); Department of Professional Regulation v. Wagner, 405 So. 2d 471, 473 (Fla. 1st DCA 1981). In resolving evidential conflicts, the fact-finder assessed the credibility of witnesses and weighed the evidence. Bejarano v. State, Department of Education, Division of Vocational Rehabilitation, 901 So. 2d 891, 892 (Fla. 4th DCA 2005); Hoover, M.D. v. Agency for Health Care Administration, 676 So. 2d 1380, 1384 (Fla. 3rd DCA 1996); Goss v. District School Board of St.

    Johns County, 601 So. 2d 1232, 1234 (Fla. 5th DCA 1992).

    
    

16. The relevant statutory terms must be strictly construed in a license discipline proceeding, including this one. Any ambiguity in the statute must be construed in favor of Respondent. State ex. rel. Jordan v. Pattishall, 99 Fla. 296,

    126 So. 147 (1930); Ocampo v. Department of Health, 806 So. 2d 633 (1st DCA Fla. 2002); Equity Corp. Holdings, Inc. v. Department of Banking and Finance, Division of Finance, 772 So. 2d 588, 590 (Fla. 1st DCA 2000); Jonas v. Florida Department of Business and Professional Regulation, 746 So. 2d 1261 (Fla. 3d DCA 2000); Loeffler v. Florida Department of Business and Professional Regulation, 739 So. 2d 150 (Fla. 1st DCA 1999);

    Haggerty v. Florida Department of Business and Professional Regulation, 716 So. 2d 873 (Fla. 1st DCA 1998); Elmariah v. Department of Professional Regulation, Board of Medicine,

    574 So. 2d 164 (Fla. 1st DCA 1990); Ferdego Discount Center v.

    
    

    Department of Professional Regulation, 452 So. 2d 1063 (Fla. 3rd DCA 1984); Rush v. Department of Professional Regulation,

    448 So. 2d 26 (Fla. 1st DCA 1984); Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981); Lester v. Dept. of Professional and Occupational Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977).

17. Neither an agency that proposes agency action nor an agency that recommends agency action may interpret the statute implemented by agency action in a manner that amends or modifies the statute, irrespective of whether the proposed or recommended agency action is based on a promulgated rule, an unpromulgated rule, or non-rule policy. The statutory interpretation of an agency must be consistent with the statute implemented. Willette v. Air Products and Bassett and Department of Labor and Employment Security, Division of Workers' Compensation, 700 So. 2d 397, 399 (Fla. 1st DCA 1997).

18. The decision in Willette is consistent with the separation of powers act. Fla. Const., Art. II, § 3. The act encompasses two prohibitions. First, no branch of government may encroach upon the powers of another. Second, no branch may

    delegate to another its constitutionally assigned power. The second prohibition is the non-delegation doctrine. Chiles v. Children A, B, C, D, E, and F, 589 So. 2d 260, 264-265 (Fla. 1991).

19. The non-delegation doctrine requires fundamental and primary policy decisions to be made by a Legislature that is elected by the people to make such decisions. Chiles, 589 So. 2d at 266. The administration of legislative programs by executive agencies, including the proposing and recommending agencies, must be pursuant to minimal standards and guidelines that are ascertainable by reference to statutory terms enacted by the Legislature in Section 316.1951 and Subsection 320.27(5).

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the alleged violations.

DONE AND ENTERED this 23rd day of May, 2008, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 23rd day of May, 2008.

ENDNOTE

1/ The first alleged facts occurred on October 29, 2002, infra, Finding of Fact 3. References to rules are to those in effect immediately prior to October 29, 2002. References to chapters, sections, and subsections are to Florida Statutes (2002), unless otherwise indicated.

COPIES FURNISHED:

Michael J. Alderman, Esquire Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432 2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Alan H. Kadesky

3 D Motors, Inc. 1333 Falkenburg Road

Tampa, Florida 33619

Electra Theodorides-Bustle, Executive Director Highway Safety and Motor Vehicles

Neil Kirkman Building 2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Robin Lotane, General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

Docket for Case No: 07-004581

Orders for Case No: 07-004581