STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Upon proper motion this cause came on for formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge on April 21, 2009, in Ocala, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Michael James Alderman, Esquire

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building, Room A-432 2900 Apalachee Parkway

Tallahassee, Florida 32344 For Respondent: No appearance

STATEMENT OF THE ISSUE

The issues to be resolved in this proceeding concern whether the Respondent should be granted an Independent Motor

Vehicle Dealer License, pursuant to Section 320.27, Florida Statutes (2008).

PRELIMINARY STATEMENT

This case arose on September 16, 2008, when the Respondent filed an application for an Independent Motor Vehicle Dealer's License with the Petitioner, Department of Highway Safety and Motor Vehicles (Department). The Department notified the Respondent of discrepancies regarding the proposed dealer location and, on October 10, 2008, requested more information. On October 21, 2008, the Respondent amended its application to show a new address.

On January 16, 2009, the Department notified the Respondent that it would deny the license and it afforded the Respondent a point of entry to contest the denial in a formal proceeding. A timely hearing request was filed and the matter was forwarded to the Division of Administrative Hearings (DOAH) and the undersigned.

The Department referred the matter to DOAH by letter on February 10, 2009, describing an Administrative Complaint and a Petition for Formal Hearing. This was possibly due to the fact that the Respondent's president held a license which had expired during the investigatory stage of the dispute. The matter was therefore styled with the Department as the Petitioner. A

Notice of Hearing was issued and sent to the Respondent at the last-known address of record.

The Respondent failed to appear at the hearing. After the lapse of a substantial period of time, approximately one-half hour, the hearing was commenced without the Respondent's presence. During the course of the hearing the Respondent never appeared nor did any person present observe the Respondent or its principal in the hearing vicinity. There has been no communication from the Respondent since the day of the hearing. Although this proceeding actually involves a denial of an application for licensure, the Department took the position that it had the burden of proof and would put on its case-in-chief, despite the Respondent's failure to appear.

During the hearing, the Department presented the testimony of five witnesses. It offered Exhibits 1 through 14, which were admitted into evidence. Upon conclusion of the hearing a transcript was ordered and the Department timely submitted its Proposed Recommended Order.

FINDINGS OF FACT

1. The Department is an agency of the State, charged with regulating the business of buying, selling or dealing in motor vehicles under § 320.27, Florida Statutes (2007). The Respondent applied for a license as an Independent Motor Vehicle Dealer.

2. The application was signed by Harold Gillis. Mr.

   
   

   Gillis is the Respondent's president and sole corporate officer. The Resident Agent is Andrew Kiswani. Mr. Kiswani is also known as Alex Kiswani and Andy Kiswani.

3. On the insurance certificate filed with the license application, Mr. Kiswani is shown as one of the named insureds. Named insureds on this type of insurance certificate are typically the dealer principals, the people actually operating the dealership.

4. Mr. Kiswani is a convicted felon. He was convicted twice for theft of state funds. He has thirteen convictions of failure to file state tax returns and seven convictions of issuance of worthless checks to the Department of Revenue.

5. Mr. Kiswani previously was licensed as a Motor Vehicle Dealer, as President of Ocala Auto and Truck Sales, Inc. That license expired on April 30, 2008.

6. On May 19, 2008, Mr. Gillis and Mr. Kiswani displayed vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed location. Both of them were warned by Department employees to cease the unlicensed activity.

7. On June 2, 2008, Mr. Gillis and Mr. Kiswani again displayed motor vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed premises. They were again warned by Department employees to cease the unlicensed activity.

8. On June 11, 2008, Ocala Auto and Truck Sales, Inc. sold a car to James Reed. That seller failed to apply for a Certificate of Title on behalf of Mr. Reed and failed to pay off a lien on the vehicle, within 10 days of acquisition of the vehicle.

9. Ocala Auto and Truck Sales, Inc., sold a vehicle to Wesley Leon Linsey. On February 7, 2007, the seller failed to apply for a Certificate of Title and registration within 30 days of delivery of the vehicle.

10. On December 28, 2007, Ocala Auto and Truck Sales, Inc. entered into a contract with Darrell Lenamond for the consignment sale of a motor vehicle owned by Mr.Lenamond. Ocala Auto and Truck Sales, Inc. sold the vehicle and never paid

    Mr. Lenamond the money due him from the sale.

    
    

11. Mr. Kiswani operated Mr. Gillis's previous dealership.

    
    

    He would be actively involved in operating the dealership for which the license is sought, by the Respondent Corporation, as its Resident Agent.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

13. The Department took the position that it had the burden of proof in this matter, and that it has the burden of

    proving the allegations of the denial letter, citing Espinoza v. Department of Business and Professional regulation, 739 So 2d 1250 (Fla. 3rd DCA 1999). Although that case is not precisely on point in a license application case, and the Department was not required to present a prima facie case, it chose to do so, even though the "Respondent" failed to appear and present any proof. The matter of burden of proof is immaterial in this situation due to the Respondent's non-appearance, after proper notice.

14. The standard of proof in this matter is a preponderance of the evidence. § 120.57(1)(j), Fla. Stat. (2008). This is a licensing application proceeding rather than a disciplinary proceeding.

15. The Department has statutory authority to deny, suspend, or revoke motor vehicle dealer licenses pursuant to Section 320.27(9), Florida Statutes (2007).

16. Specifically and in relevant part, Section 320.27(9) provides:

    1. Denial, suspension, or revocation.-

       1. The department may deny, suspend, or revoke any license issued hereunder or under the provisions of § 320.77 or § 320.771, upon proof that a licensee has committed any of the following activities:

          * * *

          2. Conviction of a felony.

          
          

       2. The department may deny, suspend , or revoke any licenses issued hereunder or

          under the provisions of § 320.77 or

          § 320.771 upon proof that a licensee has committed, with sufficient frequency so as to establish a pattern of wrongdoing on the part of a licensee, violations of one or more of the following activities:

          
          

          * * *

          
          

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

          
          

          * * *

          
          

          17. Violation of chapter 319, this chapter, or §§ 559.901-559.9221, which has to do with dealing in or repairing motor vehicles or mobile homes. Additionally, in the case of used motor vehicles, the willful violation of the federal law and rule in 15 U.S.C.

          § 2304, 16 C.F.R. § 2304, 16 C.F.R. part

          455, pertaining to the consumer sales window form.

          
          

          * * *

          
          

       3. When a motor vehicle dealer is convicted of a crime which results in his or her being prohibited from continuing in that capacity, the dealer may not continue in any capacity within the industry. The offender shall have no financial interest, management, sales, or other role in the operation of a dealership. Further, the offender may not derive income from the dealership beyond reasonable compensation for the sale of his or her ownership interest in the business.

          
          

17. Section 319.23(6) provides in relevant part:

    
    

    319.23. Application for, and issuance of, certificate of title.

    * * *

    (6) In the case of the sale of a motor vehicle or mobile home by a licensed dealer to a general purchaser, the certificate of

    title shall be obtained in the name of the purchaser by the dealer upon application signed by the purchaser, and in each other case such certificate shall be obtained by the purchaser. In each case of transfer of a motor vehicle or mobile home, the application for certificate of title, or corrected certificate, or assignment or reassignment, shall be filed within 30 days from the delivery of such motor vehicle or mobile home to the purchaser.

    
    

18. Section 320.27(2), Florida Statutes, provides:

    
    

    (2) License required.--No person shall engage in business as, serve in the capacity of, or act as a motor vehicle dealer in this state without first obtaining a license therefore in the appropriate classification as provided in this section. With the exception of transactions with motor vehicle auctions, no person other than a licensed motor vehicle dealer may advertise for sale any motor vehicle belonging to another party unless as a direct result of a bona fide legal proceeding, court order, settlement of an estate, or by operation of law. However, owners of motor vehicles titled in their names may advertise and offer vehicles for sale on their own behalf. It shall be unlawful for a licensed motor vehicle dealer to allow any person other than a bona fide employee to use the motor vehicle dealer license for the purpose of acting in the capacity of or conducting motor vehicle sales transactions as a motor vehicle dealer. Any person selling or offering a motor vehicle for sale in violation of the licensing requirements of this subsection, or who misrepresents to any person its relationship with any manufacturer, importer, or distributor, in addition to the penalties provided herein, shall be deemed guilty of an unfair and deceptive trade practice as defined in part II of chapter

    501 and shall be subject to the provisions of subsections (8) and (9).

    
    

19. Section 319.24(5)(a), Florida Statutes, provides in relevant part:

    A motor vehicle dealer acquiring ownership of a motor vehicle with an outstanding purchase money lien, shall pay and satisfy the outstanding lien within 10 working days of acquiring ownership.

    
    

20. The Department has proved by a preponderance of the evidence that the Respondent's resident agent/principal is a convicted felon with numerous felony convictions which disqualify him from being a motor vehicle dealer under Section 320.27(9)(a)(2) and (c), Florida Statutes (2007).

21. The Department has proved by a preponderance of the evidence that the Respondent's President and its Resident Agent violated Section 320.27(2), Florida Statutes (2007), by selling motor vehicles without a license on three occasions.

22. It has also proved that the Respondent's President and its Resident Agent failed to timely apply for a Transfer of Title in violation of Sections 319.23(6) and 320.27(9)(b)6., Florida Statutes (2007).

23. The Department has proved by a preponderance of the evidence that the Respondent's President and Resident Agent failed to timely satisfy a lien for a motor vehicle in violation of Section 319.24(5)(a), Florida Statutes (2007).

24. The above statutory violations, which are not expressly set forth in Section 320.27(9)(b), Florida Statutes, are violations of Chapter 319 or 320 and have to do with dealing in motor vehicles. Thus, the Department has established grounds for denying Respondent's application for licensure under

    Section 320.27(9)(b)17., Florida Statutes (2007).

    
    

25. The violations of Section 320.27(9)(b), Florida Statutes (2007) proven by the Department were committed with sufficient frequency to establish a pattern of wrongdoing. Thus, the Department has established grounds to deny the Respondent's Motor Vehicle Dealer License application. The

Respondent has shown no mitigating circumstances relating to the offenses involved in this case.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED:

That the Florida Department of Highway Safety and Motor Vehicles enter a Final Order denying the Respondent's license application.

DONE AND ENTERED this 31st day of July, 2009, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2009.

COPIES FURNISHED:

Electra Theodorides-Bustle, Executive Director Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building 2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Robin Lotane, General Counsel Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building 2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Michael James Alderman, Esquire Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432 2900 Apalachee Parkway

Tallahassee, Florida 32344

Harold Gillis Certified Motors, Inc. 2895 South Pine Avenue Ocala, Florida 34471

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: 09-000701

Orders for Case No: 09-000701