STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES DIVISION OF MOTOR VEHICLES

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

Petitioner, Case No.: DMV-10-467 License No.: VI-1014513

V.

DCW MARKETING UNLIMITED, INC. D/B/A 1ST CHOICE AUTO,

Respondent.

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ADMINISTRATIVE COMPLAINT

Petitioner , the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, files this Administrative Complaint against DCW Marketing Unlimited, Inc. d/b/a 1st Choice Auto, Respondent, and alleges:

1. Petitioner is the state agency charged with regulating the business of buying, selling, or dealing in motor vehicles or offering or displaying motor vehicles for sale, pursuant to section 20.24 and chapter 320, Florida Statutes and Rules 15-2.001 and 28-106.2015, Florida Administrative Code.

2. Respondent is, and has been at all times material hereto, a licensed motor vehicle dealer in the State of Florida, having been issued license number VI-1014513, based upon the application identifying Thomas Onaczyszyn, as President. The address of record is 3151 Cooper Street, Unit 3, Punta Gorda, Florida 33952.

3. Section 320.27(3), Florida Statutes, provides that, as a requirement for licensure, a motor vehicle dealer's place of business must operate from a location approved by the department that meets specified requirements.

   
   

   Filed June 17, 2010 9:54 AM Division of Administrative Hearings.

4. Rule 15C-7.003(6)(d)9 and 12, Florida Administrative Code, provides that as a requirement of operation a motor vehicle dealer shall notify the Department in writing of a permanent closing or cessation of business at the main or any licensed supplemental location and shall report any change of address to the Department and shall receive approval for any new place of business prior to relocating the business.

5. With its application for the May 1, 2009 to April 30, 2010, licensure period, Respondent attested its place of business was its address of record.

6. On or about July 2, 2009, Compliance Examiner Parkhill observed that Respondent's approved location was vacant. Compliance Examiner Parkhill observed that there were no vehicles displayed for sale, there were no signs and the office area was vacant except for a desk. Compliance Examiner Parkhill attempted to contact the principal of the dealership but the mail box was full and he unable to leave a message.

7. On or about December 8, 2009, Compliance Examiner Parkhill returned to Respondent's approved location and the location was still vacant. Compliance Examiner Parkhill observed that there was only a small sign for Respondent's dealership along with a sign for a different business. The office area was covered by auto parts and junk and a thick coating of dust.

8. Based on the foregoing, Respondent violated section 320.27(9)(b)(8), Florida Statutes by failing to continually meet the requirements of section 320.27(3), Florida Statutes, the licensure law, and Rule 15C-7.003(6)(d)9 and 12, Florida Administrative Code, by failing to notify the Department in writing of a permanent closing or cessation of business.

EXPLANATION OF RIGHTS

You have the right to request a hearing to be conducted in accordance with sections

120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses, and to have subpoena(s) and subpoena(s) duces tecum issued on your behalf if a hearing is requested. In response to the allegations set forth above, you must make one of the following elections and file your response within twenty-one (21) days from the date of your receipt of this Administrative Complaint. Please make your election on the enclosed Election of Rights form and ensure the Department receives it within 21 days.

1. If you admit the material fact(s) alleged in this Administrative Complaint, you may request a hearing, pursuant to section 120.57(2), Florida Statutes, before the Division of Motor Vehicles Hearing Officer. At this hearing, you would be given an opportunity to challenge the conclusions of law and/or present either written and/or oral evidence in mitigation of any proposed penalty. A request for this type of hearing, in which no material facts are in dispute, should be directed to the Office of the Hearing Officer, 2900 Apalachee Parkway, MS-61, Tallahassee, Florida 32399, by checking the appropriate space, marked as "1" on the Election of Rights form and ensuring the Office of the Hearing Officer, 2900 Apalachee Parkway, MS-61, Tallahassee, Florida 32399, receives it within 21 days from the date of your receipt of this Administrative Complaint.

   
   

2. If you dispute any material fact alleged in this Administrative Complaint, you must present sufficient evidence of your dispute and you may request a hearing, pursuant to section 120.57(1), Florida Statutes, at the Division of Administrative Hearings before an Administrative Law Judge. A request for this type of evidentiary hearing, in which material facts are in dispute, should be directed to the Department by checking the appropriate space, marked as "2" on the Election of Rights form, specifying the material allegations of fact you are disputing, a general denial is not sufficient and ensuring the Office of the Hearing Officer, 2900 Apalachee Parkway, MS-61, Tallahassee, Florida 32399, receives it within 21 days from the date of your receipt of this Administrative Complaint. If you elect an evidentiary hearing, you must keep the Office of the Hearing Officer, 2900 Apalachee Parkway, MS-61, Tallahassee, Florida 32399, informed of your current mailing address; failure to do so may be considered a waiver of your right to an evidentiary hearing.

   
   

3. If you wish to settle this matter now, indicate this by checking the appropriate space, marked as "3" on the Election of Rights form and ensure that the Office of the Hearing Officer, 2900 Apalachee Parkway, MS-61, Tallahassee, Florida 32399, receives it, and the signed Agreement for Voluntary Revocation of Licensure within 21 days from the date of your receipt of this Administrative Complaint.

In the event you fail to file your election in this matter with the Department within 21 days from your receipt of this Administrative Complaint, your failure may be considered a waiver of your right to dispute the alleged facts and the Department may proceed to enter a Final Order based upon the allegations contained in the Administrative Complaint.

This document has been served on you by hand delivery, certified mail or publication. All subsequent documents, orders, notices, or related correspondence will be provided to you by email at the email address you provided to the Department in your license application(s). In the event no email address was provided in your license application(s) regular US mail will be utilized.

If you provided the Department an email address in your license application(s) you should check your email on a regular basis if an Administrative Complaint or Order of Emergency Suspension has been filed and served on you.

Pursuant to section 120.573, Florida Statutes, mediation is not available for this proceeding.

WHEREFORE, the Department hereby gives notice of its intent to enter an Order imposing one or more of the following penalties: revocation or suspension of Respondent's license, imposition of an administrative fine, and/or any other relief deemed appropriate.

arl A. Ford, Director Division of Motor Vehicles

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building, Room B439, MS 60 Tallahassee, Florida 32399-0600

Filed in the official records of the Division of Motor Vehicles

this ay of March, 2010.

CAF:jdc

Copies furnished:

Dianne McGowan Regional Administrator

Dealer Licensing

By certified mail to:

Thomas Onaczyszyn, President DCW Marketing Unlimited, Inc. 21089 Edgewater Drive

Port Charlotte, Florida 33952

Docket for Case No: 10-003326