a ~ STATE OF FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES DIVISION OF MOTORIST SERVICES DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF MOTORIST SERVICES, Petitioner, Case No.: MS-13-275 License No.: VI-1008640 v. RICHARD MICHAEL NYE D/B/A NYES AUTO SALES, Respondent. / ADMINISTRATIVE COMPLAINT Petitioner, the Department of Highway Safety and Motor Vehicles, Division of Motorist Services, files this Administrative Complaint against Richard Michael Nye d/b/a Nyes Auto Sales, 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 Rule 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-1008640, based upon the application identifying Richard M. Nye as Owner. The address of record is 542089 US Highway 1, Callahan, Florida 32011. 3. Section 320.27(3), Florida Statutes, requires that motor vehicle dealers keep and maintain books, records, and files necessary to conduct such business, which will be available at all reasonable hours to inspection by the department or any of its inspectors or other employees. a o 4. Section 320.27(6), Florida Statutes, requires that every licensee shall keep a book or record in such form as shall be prescribed or approved by the department, in which the licensee shall keep a record of the purchase, sale or exchange, or receipt for the purpose of sale, of any motor vehicle, the date upon which any temporary tag was issued, the date of title transfer, and the description of such motor vehicle together with the name and address of the seller, the purchaser, and the alleged owner or other person from whom such motor vehicle was purchased or received or to whom it was sold or delivered, as the case may be. 5. Rules 15C-7.002(3), 15C-7.002(4), and 15C-7.002(6), Florida Administrative Code, require dealers to maintain specific written records of each vehicle acquired and disposed of by the dealership, including but not limited to, a written copy of each odometer disclosure statement received when a vehicle is acquired and each odometer disclosure statement issued by him upon disposing of each vehicle. 6. Section 319.23(6)(a), Florida Statutes, provides that in the case of the sale of a motor vehicle by a licensed dealer to a general purchaser, the dealer, upon application signed by the purchaser, shall file the application for certificate of title within 30 days from the delivery of the vehicle to the purchaser. 7. Section 320.131(2), Florida Statutes, provides that no more than two temporary tags shall be issued to the same person for the same vehicle. 8. Section 320.27(7), Florida Statutes, requires for each used motor vehicle in the possession of a licensee and offered for sale by him or her, the licensee either shall have in his or her possession or control a duly assigned certificate of title from the owner, or reasonable indicia of ownership or right of possession, or have made proper application for a certificate of title or duplicate certificate of title. o a COUNT ONE 9. Petitioner realleges and incorporates as if fully stated herein the allegations contained in the paragraphs above. 10. On or about December 14, 2012, Compliance Examiner Diane Frith conducted a records inspection of Respondent dealership. 11. At the time of the inspection referenced in paragraph 10 above, Compliance Examiner Frith examined the records of five purchases and sales and found that Respondent had failed to file the application for certificate of title within 30 days on four of the five vehicle records inspected. 12. Based on the foregoing, Respondent violated section 320.27(9)(b)6, Florida Statutes, through a violation of section 319.23(6)(a), Florida Statutes, by failing to timely file an application for certificate of title to a motor vehicle. COUNT TWO 13. Petitioner realleges and incorporates as if fully stated herein the allegations contained in paragraphs one, two, and seven, above. 14. At the time of the inspection referenced in paragraph 10 above, Compliance Examiner Frith examined the records of five purchases and sales and found that Respondent issued three temporary tags to the same person for the same vehicle. 15. Based on the foregoing, Respondent violated section 320.27(9)(b)17, Florida Statutes, through a violation of section 320.131(2), Florida Statutes, by issuing more than two temporary tags to the same person for the same vehicle. COUNT THREE 16. Petitioner realleges and incorporates as if fully stated herein the allegations contained in paragraphs one, two, three, four, and five, above. a a 17. At the time of the inspection referenced in paragraph 10 above, Compliance Examiner Frith examined the records of five purchases and sales and found that Respondent did not have the complete written record for all five of the five vehicles sold. 18. Based on the foregoing, Respondent violated section 320.27(9)(b)16, Florida Statutes, through a violation of section 320.27(3), Florida Statutes, and Rules 15C-7.002(3), 15C-7.002(4), and 15C-7.002(6), Florida Administrative Code, by failing to maintain an accurate written record of each vehicle acquired and disposed of by the dealership. COUNT FOUR 19. Petitioner realleges and incorporates as if fully stated herein the allegations contained in paragraphs one, two, and eight, above. 20. At the time of the inspection referenced in paragraph 10 above, Compliance Examiner Frith examined the records of five purchases and sales and found that Respondent did not have a duly assigned certificate of title from the owner, reasonable indicia of ownership or right of possession, or had made proper application for a certificate of title or duplicate certificate of title for all five of the five vehicle records inspected. 21. Based on the foregoing, Respondent violated section 320.27(9)(b)17, Florida Statutes, through a violation of section 320.27(7), Florida Statutes, by failing to have in his or her possession or control a duly assigned certificate of title from the owner or reasonable indicia of ownership or right of possession, or have made proper application of a certificate of title or duplicate certificate of title. 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. 4 oO ~ In response to the allegations set forth above, you must make one of the following elections and file your response within 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 that 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 Motorist Services Hearing Officer. At this hearing, you would be given an opportunity to challenge the conclusions of law and/or present 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 General Counsel by checking the appropriate space, marked as “1” on the Election of Rights form, and ensuring that the Department 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 Office of the General Counsel 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 that the Office of the General Counsel 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 Division of Motorist Services Legal Office 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 Department receives it, the signed Settlement Stipulation, and any required check made payable to the Division of Motorist Services 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 that no email address was provided in your license application(s), regular US mail will be utilized. If you provided the Department with 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. DSV:jdc Copies furnished: Thomas Norris Regional Administrator Dealer Licensing By certified mail to: Richard M. Nye, Owner Nyes Auto Sales Post Office Box 217 Callahan, Florida 32011 a ALMA po Dennis S. Valente Assistant General Counsel Florida Bar # 344818 Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A430 Tallahassee, Florida 32399 Telephone: (850) 617-3006 E-mail: dennisvalente@flhsmv.gov Filed in the official records of the Division pf Motorist Services this /¥'=day of March, 2013.

Docket for Case No: 13-001235

Orders for Case No: 13-001235