The Issue The issue for disposition in this proceeding is whether Respondent's motor vehicle dealer license should be revoked for his prior conviction of a felony, as proposed in an administrative complaint dated October 26, 1993.
Findings Of Fact It is uncontroverted that Respondent Lorenzo Reddick, Jr. (Reddick) holds an independent motor vehicle dealer license, issued by the Department of Highway Safety and Motor Vehicles (DHSMV). The complaint fails to allege, and there is no evidence of, when the license was issued. The licensed place of business is 3214 Orange Center Boulevard, #C, Orlando, Florida. On April 27, 1993, Reddick pleaded, and was adjudged guilty of a single count offense in a multi-count superseding indictment, in U.S.A. v. Lorenzo Reddick, Case #92-104 Cr-Orl-19, in the U.S. District Court for the Middle District of Florida. The offense, as described in the Judgment, was "Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity", on 12/30/91, pursuant to title 18 U.S. Code, section 1957(a), and title 18 U.S. Code, Section 2. (Petitioner's exhibit #1) Reddick was sentenced to twenty-four months imprisonment, commencing May 21, 1993, with two years supervision after release. According to the court documents comprising Petitioner's exhibit #1, the sentence was less than provided in sentencing guidelines "upon motion of the government, as a result of defendant's substantial assistance." Reddick is currently serving his prison term. At the time of the offense Reddick was not operating nor was he licensed as a motor vehicle dealer. There is no evidence of whether his license was obtained before or after his conviction. There is no evidence whatsoever of the offense other than what is found on the face of the judgment, as reflected above. DHSMV learned of Reddick's conviction in the process of investigating a filed complaint related to failure to transfer title and registration of a vehicle purchased from Reddick's dealership. Neil Chamelin was the manager of DHSMV's dealer license and consumer complaint programs and was responsible for evaluating requests for administrative action and preparing administrative pleadings for the division director. Chamelin received a copy of Reddick's Judgment of Conviction and Sentence and based the administrative complaint on those documents only. Chamelin has no independent knowledge of the offense. DHSMV has a longstanding policy that a single felony conviction may be sufficient for the agency to take action against a dealer's license. That is, the agency has interpreted the language of the relevant statute to mean that a licensee does not automatically get one free felony before his dealer's license is jeopardized, even after the language was amended seven or eight years ago to include a requirement of sufficient frequency of violations as to establish a pattern of wrongdoing.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: that the Department of Highway Safety and Motor Vehicles enter its Final Order dismissing the Administrative Complaint that is the subject of this proceeding. DONE AND RECOMMENDED this 17th day of May, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1994. COPIES FURNISHED: Michael J. Alderman Assistant General Counsel Department of Highway Safety & Motor Vehicles Neil Kirkman Building, Room A432 Tallahassee, Florida 32399-0504 James R. Cunningham, Esquire 200 East Robinson, Suite 1220 Orlando, Florida 32801 Charles J. Brantley, Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Room B439 Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Findings Of Fact Respondent, Debra Ann Vallancourt, was issued a Class "EE" Recovery Agent Intern License on August 12, 1992. Respondent has never held a Class "R" Recovery Agency License or a Class "E" Recovery Agent License. June MacWithey, who holds a Class "R" Recovery Agency License and a Class "E" Recovery Agent License, sponsored Respondent's internship beginning in April, 1992. Prior to that time, Respondent was sponsored under the Class "E" License of Septhanie MacWithey, one of June MacWithey's employees. The name of June MacWithey's recovery agency is Collateral Collection Corporation. The name was changed in February, 1993. The former name of the corporation was Midnight Auto Adjusters. In November, 1992, June MacWithey formally terminated her sponsorship of Respondent. At approximately the same time, Steve MacWithey had a conversation with Respondent regarding complaints made against her for allegedly contracting to perform repossessions without her sponsor's knowledge or permission. However, it is not clear whether she was informed at that time that her internship was being terminated. Steve MacWithey, June's husband, is a Class "EE" Recovery Agent Intern, and one of June's employees. Charles Mason is the manager of Auto Sports Center, Inc., in Apopka, Florida. In late summer, 1992, Sharon Landis introduced Respondent to Mason as a licensed repossessor. He hired Respondent to perform repossessions as an independent contractor, and paid her by check made payable to Debbie Vallancourt. He eventually hired Respondent as an employee in March or April of 1993. Respondent repossessed approximately 30-35 cars for Mr. Mason between October, 1992 and January, 1993. Respondent never advised Mason that she was working for Midnight Auto Adjusters or Collateral Collection Corporation. However, she would on occasion perform repossessions with Steve MacWithey who would pick her up at Mason's car lot. Some of the repossessions Respondent performed for Mason, between October and December, 1992, were done without the knowledge of her sponsor June MacWithey, and on some of the repossessions performed for Mason, Respondent would cash her check and split the money with Steve MacWithey, bypassing her sponsor. George Namlik, Sr. owns a used car dealership in Apopka, Florida. In early November, 1992, Respondent solicited Namlik for the purpose of performing repossessions for his dealership. She indicated to him that she was licensed to perform repossessions. She showed him her Class "EE" Recovery Agent Intern License, which he made a copy of, and told him that another license was in the mail. Next to the photocopy of the Class "EE" license, Respondent wrote her office number, her digital beeper number, and her quoted price for each repossession. Respondent did not tell Mr. Namlik that she was working with anyone else, and led him to believe that she had the necessary licenses to work as an independent contractor. Namlik assigned her two repossessions which she never completed. She returned the car keys to Namlik following numerous requests and his threat to complain to the Department of State, Division of Licensing. June MacWithey did not properly supervise and direct the activities of Respondent. Between October and December, 1992, Respondent solicited and performed repossessions independent of, and without the knowledge of, her sponsor. Petitioner's explanation for this conduct is not credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found GUILTY of violating Sections 493.6118(1)(g) and receive a written reprimand and pay an administrative fine in the amount of One Thousand Dollars ($1,000). DONE and ENTERED this 13th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1885 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-19 Respondent's proposed findings of fact. Respondent did not submit proposed findings. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Debra Ann Vallancourt (pro se) Post Office Box 269 Apopka, Florida 32712-0269 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On November 16, 1987, the Respondent signed, under oath, an application for an independent motor vehicle dealer license for the business name of Southern Auto Sales which was submitted to the Department, and, based upon that application, the Department issued an independent motor vehicle dealer license, number 7VI-011359, to Respondent d/b/a Southern Auto Sales on November 30, 1987. In the application referred to above, Respondent answered no to the question, Has the applicant or any partner or corporate officer or director: Been arrested on a felony or equivalent charge anywhere?; Been convicted of a felony or equivalent anywhere? In 1988, 1989, and 1990, Respondent submitted to the Department a Short Form Application, commonly referred to as a renewal application, and the Department renewed license number 8VI-011359 in 1988, 9VI-011359 in 1989, and 0VI-011359 in 1990. The number before the prefix VI indicates the year of issuance. Respondent signed each of these renewal applications under oath wherein the affirmation stated " . . . the information contained in this application is true and correct and that nothing has occurred since I filed my last application for a license or application for renewal of said license, as the case may be, which would change the answers given in such previous application." Additionally, the instructions for the renewal application advised the applicant that the short form could be used if the applicant was currently licensed and, among other things, there were no changes in the applicant's personal background such a criminal conviction. Respondent, currently holds an independent motor vehicle dealer license, number 1VI-011359, issued by the Department on May 1, 1991. Respondent, using the name William J. Butler, was arrested and charged in December 1977 with uttering a forgery. The Respondent pled guilty to the charge of uttering a forgery in April 1978 before the Circuit Court, Harrison County, Mississippi and was sentenced to four years in the Mississippi Department of Corrections. In 1978, the Respondent, using the name William J. Butler, was arrested and charged with uttering a forgery. Respondent was subsequently convicted and sentenced by the Circuit Court, Jackson County, Mississippi to four years in the Mississippi Department of Corrections, said sentence to run concurrently with the sentence imposed by the Circuit Court, Harrison County, Mississippi. William J. Butler and Bernard J. Haney, the Respondent in this case, are one in the same person. On October 25, 1979, after serving only approximately 1 1/2 years of the two four-year sentences, Respondent was paroled by the Mississippi Parole Board with conditions for supervision made a part of the parole. In 1981 Respondent sought and received treatment for alcoholism, having been an alcoholic for a period of twenty years. After treatment, with the help of Alcoholics' Anonymous, Respondent has maintained a life of sobriety. In November 1988 a Warrant for Retaking a Paroled Prisoner was issued against Respondent, and he was recommitted to the Mississippi Department of Corrections for "absconding supervision" of his parole. However, with the help of some "new" friends, gained after his treatment for alcoholism, Respondent was incarcerated for only a short period, and was "honorably discharged" from the Mississippi Department of Corrections on December 20, 1984. The Harrison County charge of uttering a forgery was in connection with a check for $169.92, and the Jackson County charge of uttering a forgery was in connection with a check for $139.36. There is nothing stated in the Discharge Certificate that should have led the Respondent to believe or understand that his criminal record had been expunged and his rights restored upon receiving his "honorable discharge" from the Mississippi Department of Corrections in December 1984. However, considering the circumstances surrounding his commitment in the first place, his recommitment in 1984 and his immediate release thereafter, Respondent's testimony that such was his belief and understanding is credible. There is insufficient evidence to show that at the time of his initial application for licensure in 1987 or at the time of his renewal applications in 1988, 1989 and 1990, that Respondent acted fraudulently or willfully misrepresented the facts when he answered no to the questions concerning any prior arrests or convictions for a felony. After the release in 1979 and up to the date of his initial application for licensure, the Respondent's criminal record is clear except for the arrest in 1984 where the charges were dropped but the arrest resulted in his recommitment. From the date of his initial application until the date of the hearing the Respondent's criminal record is clear except for an arrest in 1990 concerning charges of tampering with an odometer. Apparently, these charges have been dropped and the matter handled civilly through the Polk County Citizen Dispute Settlement Center.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department enter a Final Order dismissing the administrative complaint filed herein. DONE and ENTERED this 27th day of August, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner - 9. Adopted in Findings of Fact 5, 6, 7, 8, 1, 1, 2, 3, and 4, respectively. 10. Stated more as an argument than a finding of fact, otherwise rejected since there was no substantial competent evidence in the record to prove that there was fraudulent or willful misrepresentation of the facts in the application. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent's Proposed Recommended Order is divided into three principal parts: (a) Proposed Findings of Fact; (b) Comments on Testimony and Evidence; and (c) Proposed Conclusions of Law. Only the Proposed Findings of Fact will be addressed to in this Appendix. Adopted in substance in Finding of Fact 1. - 3. Unnecessary. Adopted in substance in Finding of Fact 1. - 7. Covered in Preliminary Statement. Conclusion of Law. Covered in the Preliminary Statement, otherwise unnecessary. Covered in the Preliminary Statement. - 12. Covered in the Preliminary Statement, otherwise unnecessary or not material or relevant. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A432 Tallahassee, FL 32399-0504 Charles R. Mayer, Esquire Post Office Box 267 Highland City, FL 33846 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500
The Issue The issues in this case are whether Respondent, Jean M. Duterne (Respondent), committed the violations alleged, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility of regulating and licensing security officers within the State of Florida. See §§ 493.6101(1) and 493.6118, Fla. Stat. (2010). At all times material to the allegations of this case, Respondent held Security Officer License D 2526539 (D-license) and Statewide Firearms License G 2800118 (G-license). Prior to being licensed, Petitioner went through security officer training. To that end, Petitioner has read and asserts he understands Chapter 493, Florida Statutes (2008). Respondent was on-duty working as an armed security guard at the JMS Hotel (the hotel), located at 21601 32nd Street, South, St. Petersburg, Florida, on August 20, 2008. Respondent was involved in an incident in the hotel’s parking lot that resulted in police responding to the property. Respondent provided information to police at or near the time of the incident on August 20, 2008. On August 20, 2008, Respondent responded to a call to investigate a possible credit card theft in Room 166 of the hotel. When he presented at the room, Respondent observed a woman sitting in a car parked adjacent to the room and another woman loading items into the car. When Respondent attempted to speak to the woman inside the car, she started the engine and began to exit the property. At that time, Respondent reached into the vehicle and attempted to remove the key from the ignition. It was Respondent’s intention to detain the woman to determine what she was doing. Contrary to Respondent’s effort, the vehicle began to pull away, and Respondent hurriedly pulled himself from harm’s way and stepped back away from the vehicle. In the excitement of the moment, Respondent drew his 9 mm semi-automatic pistol and discharged it, in an effort to hit the tire of the exiting vehicle. Respondent did not hit the tire. It is unknown what, if anything, was struck by the bullet discharged. Respondent’s G-license expired on June 2, 2010. Respondent’s D-license is still valid. The course Respondent took to obtain the G-license required a 28-hour course taught by a state-licensed instructor. The course training includes a manual that contains scenarios for licensees to consider as examples of when one should retreat from potentially dangerous situations. Generally, licensees should avoid using deadly force (equivalent to discharging a firearm) whenever possible. Only under limited situations should a licensee discharge a weapon. To further explain and provide guidance for the use of deadly force, the manual sets forth the following examples: Situation #1 You are guarding a liquor store and are advised by a customer that there is an armed robbery in progress. You look around the corner and see a man rushing out the front door with a firearm in his hand. Instructor Discussion: Instead of immediately looking around the corner, call the police first. The suspect could turn around and see you as you look around the corner, thus increasing the probability of armed conflict. The man is running away from you and there is no threat of death or great bodily injury. Don’t shoot. Situation #2 You have been advised that a burglary has occurred at a warehouse you are guarding. The suspects were observed leaving the scene in a blue, 1972 Dodge. Later that night, while patrolling the grounds in a well- marked security vehicle, you observe the suspects’ vehicle traveling through the parking lot at a high rate of speed with the headlights off. You see a flash come from the driver’s side of the suspects’ vehicle and almost simultaneously the front windshield of your patrol car cracks. The suspect vehicle continues through the parking lot at a high rate of speed. Instructor Discussion: Don’t shoot. Record license number and description of vehicle and suspects if it is possible to do so from a covered position. Pursuit could result in serious injury to you or to innocent bystanders who may get in the way. Call for police as soon as possible. Respondent created the incident in this case by reaching into the vehicle. Had he used the methods outlined in the manual, Respondent would have responded to the room, contacted police with the information concerning the description of the car and its occupants, and followed up by determining whether a theft had occurred. Instead, by injecting himself into the car and attempting to remove the ignition key, Respondent could have easily been injured. Even so, such an injury would not have supported the discharge of Respondent’s weapon in a location where others could have been injured. This is especially true in light of the fact that the vehicle was pulling away from Respondent and not toward him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services, Division of Licensing, enter a final order denying the renewal of Respondent’s G-license and placing Respondent’s D-license on probation with such additional terms as the Department might deem appropriate. DONE AND ENTERED this 1st day of December, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 1st day of December, 2010. COPIES FURNISHED: James A. Thomas, Esquire 334 South Hyde Park Avenue Tampa, Florida 33606 Tracy Sumner, Esquire Division of Licensing Division of Agriculture and Consumer Services 2520 North Monroe Street Tallahassee, Florida 32301 Constance N. Crawford, Director Division of Licensing Division of Agriculture and Consumer Services Post Office Box 3168 Tallahassee, Florida 32315-3168
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Daniel M. Kilbride , an Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's Motion to Relinquish Jurisdiction based on a Settlement Stipulation entered into between the parties, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly it is FOUND and ORDERED as follows: That Respondent shall pay an administrative fine in the amount of two hundred fifty dollars ($250.00) per count for a total of four thousand two hundred fifty dollars ($4,250.00). The fine shall be paid in four monthly payments. The first payment of $1,250.00 to be paid on or before April 16, 2010. The second payment of $1,000.00 to be paid on or before May 16, 2010. The third payment of $1,000.00 to be paid on or before June 16, 2010. The fourth Filed March 18, 2010 4:17 PM Division of Administrative Hearings. and final payment of $1,000.00 to be paid on or before July 16, 2010. All payments are to be made by returning a copy of the order with payment to: Department of Highway Safety and Motor Vehicles Office of the Hearing Officer Division of Motor Vehicles 2900 Apalachee Parkway, Room A308, MS-61 Tallahassee, Florida 32399-0600 If Respondent pays each installment of the amount specified in paragraph one above within the specified time the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay any installment as specified in paragraph one, on the day following the due date of the installment, Respondent's motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. If, after suspension Respondent pays the past due installment before the due date of the next installment, its motor vehicle dealer license will immediately be reinstated without further penalties or sanctions. However, if Respondent fails to pay the past due installment by the due date of the next installment, the Department will revoke Respondent's motor vehicle dealer license. If the Department suspends or revokes Respondent's motor vehicle dealer license for non-payment as specified in paragraphs two and three said suspension or revocation shall be without recourse to the Respondent and Respondent hereby expressly waives any right to appeal or otherwise contest the suspension and revocation./ / DONE AND ORDERED this / gday of March 2010, at Tallahassee, Leon County, Florida. 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. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rule 9.110, Rules of Appellate Procedure. CAF:jdc Copies furnished: Gary Konopka Regional Administrator Dealer License Section Riad I. Kantar, President World Shell, Inc. 7161 Augusto Boulevard Seminole, Florida 33777 FALR Post Office Box 385 Gainesville, Florida 32602
