Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the demeanor of the witnesses, the following relevant facts are found: At all times pertinent to this proceeding, respondent T.A.S. Auto Sales held independent motor vehicle license #6VI-2652, with a licensed place of business at 117 1/2 Central Avenue in Brandon, Florida. The owner of T.A.S. Auto Sales is Donald Hunt. On May 1, 1985, the Division of Motor Vehicles issued license number 5VI-003620A to T.A.S. Auto Sales for a supplemental location at 312 East Brandon Boulevard in Brandon, Florida. The expiration date on this license was April 30, 1986. Donald Hunt leased the property at 312 East Brand on Boulevard and operated a retail car sales business there until approximately mid-June of 1985. He then decided to sell the business to Clarence W. Jenkins, and entered into an Assignment of Lease on July 1, 1985. According to Mr. Hunt, it was his intent to allow Mr. Jenkins to operate under the supplemental license of T.A.S. Auto Sales while Mr. Jenkins, doing business as Brandon Auto Brokers, obtained his own Florida Dealers License. However, according to Mr. Hunt, said arrangement was to terminate no later than July 28, 1985. A letter setting forth this agreement was received into evidence as respondent's Exhibit 4. From July 1, 1985, through July 28, 1985, Donald Hunt did supervise all title work performed through Brandon Auto Brokers and/or Mr. Jenkins. During July and early August, 1985, Brandon Auto Brokers secured a County occupational license, a Department of Revenue Certificate of Registration to collect sales and use taxes, a reassignment of telephone numbers, an insurance binder, a surety bond and membership in the Florida Independent Automobile Dealers Association. Signage indicating either Brandon Auto Brokers or "under new management" was also placed on the premises, but the date upon which such signage was erected was not established. Lois Jarvis, an inspector with the Division of Motor Vehicles, testified that she spoke on the telephone with Mr. Hunt and Mr. Jenkins on August 9, 1985, and thereafter mailed to Mr. Jenkins an application form for a dealer's license. It was Inspector Jarvis' understanding that Mr. Hunt was allowing Jenkins to operate under Mr. Hunt's supplemental license until such time as Jenkins obtained his own license. On September 4, 1985, she visited the supplemental lot to check on Mr. Jenkins' incomplete application. Her next visit with either Mr. Hunt or Mr. Jenkins occurred on September 23, 1985. At that time, while at Mr. Hunt's lot on Central Avenue, Mr. Hunt informed her that he had nothing more to do with the supplemental lot on Brand on Boulevard, and gave Ms. Jarvis his license for that location. Inspector Jarvis then went over to the supplemental lot and issued a Notice of Violation to Mr. Jenkins/Brandon Auto Brokers for offering, displaying for sale and selling motor vehicles without a license. On September 24, 1985, Ms. Jarvis requested the Department to cancel dealer license 5VI-3620A on the ground that "dealer closed lot and surrendered license." Mrs. Jarvis testified that she did not visit either the supplemental lot or the main lot in July or August of 1985. Her work records for July and August do not reflect a visit to either location. Mr. Hunt, and several witnesses testifying in respondent's behalf, testified that he told Inspector Jarvis in early July that he would have nothing more to do with the supplemental lot beyond July 28, 1985. It was their testimony that Mrs. Jarvis' response was that "there was no way Mr. Jenkins could be issued a license by July 28th, to which Mr. Hunt responded, "that's not my problem." Mr. Hunt admits that he did not specifically request Mrs. Jarvis to cancel his license for the supplemental lot as of July 28th, and that he did not deliver that license to Mrs. Jarvis until September 23, 1985. Based upon the demeanor and possible motives of the witnesses, as well as the documentary evidence received into evidence, it is concluded that Inspector Jarvis did not visit either the supplemental lot or the main lot for which T.A.S. held licenses in June, July or August of 1985. It is further found that Inspector Jarvis did not become aware that Mr. Hunt intended to cease all relationships with the supplemental lot until he delivered the license for those premises to her on September 23, 1985. By statute, an independent motor vehicle license period is from May 1 to April 30 of the following year. Licenses expire annually, "unless revoked or suspended prior to that date." Section 320.27(4), Florida Statutes. The Department has no rule, regulation, policy or established procedure for a licensee to surrender or cancel a license prior to the expiration date. On July 30, 1985, Bruce Reich purchased a 1980 Chevrolet Camero from the Jenkins at the supplemental lot. His checks were made payable to Brandon Auto Brokers. He did not think he was buying a car from T.A.S. or from Don Hunt. On or about September 30, 1985, Mr. Reich filed a Complaint Affidavit against Brandon Auto Brokers regarding this transaction. As of the date of the hearing, Mr. Reich had still not received title to the vehicle he purchased. On August 26, 1985, William S. Ryder purchased a 1981 Van from the Jenkins at the supplemental lot. On or about October 2, 1985, Mr. Ryder filed a Complaint Affidavit against T.A.S. Auto Sales on the ground that he had not received a clear title or plates for this vehicle. He had previously attempted to locate Mr. Jenkins, but was unable to find him.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent be DISMISSED. Respectfully submitted and entered this 31st day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0471 The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 8. Rejected; the evidence demonstrates that respondent intended that its responsibilities with regard to the supplemental lot would terminate on July 28, 1985. Respondent 1 - 3. Rejected in part as improper findings of fact. 4 - 9A. Rejected; not supported by competent, substantial evidence. 9H. Accepted, except that the evidence demonstrates that the Ryder complaint named T.A.S. Auto Sales as the dealer. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Michael N. Kavouklis, Esquire 419 West Platt Street Tampa, Florida 33606 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue The issue is whether the registration of Robert T. Marsh as a motor vehicle service agreement company salesman should be revoked. The Superintendent of Insurance of the State of New York revoked the licensure of Mr. Marsh under Section 117 of the Insurance Law of that state and Mr. Marsh failed to acknowledge this on his application for licensure in Florida, despite a specific question requiring disclosure of such information. This demonstrates a lack of fitness or trustworthiness to engage in the business authorized under Chapter 634, Florida Statutes. Mr. Marsh's license should be revoked.
Findings Of Fact Mr. Marsh became licensed 1/ as a motor vehicle service agreement company salesman in Florida in 1984. On May 11, 1977, the Superintendent of Insurance of the State of New York revoked all casualty insurance licenses of Robert T. Marsh under Section 117 of the Insurance Law of the State of New York because he failed to account for premium funds collected from clients and violated agreements regarding the payment of unearned commissions due to insurers (Petitioner's Exhibit 2a, Tr. page 13, line 9). In his findings of fact, conclusion and decision the Superintendent of Insurance also found that letters directed to Mr. Marsh regarding complaints filed with the New York Insurance Department were ignored, and such action reflected adversely upon Mr. Marsh's trustworthiness (id). The Insurance Department of the State of New York notified Mr. Marsh that his license had been revoked by certified mail dated June 28, 1977. The return receipt for that letter shows that it was received by Mr. Marsh on June 28, 1977 (Petitioner's Exhibit 4); Mr. Marsh admitted during the hearing that he received the notification from the New York Department of Insurance (Transcript p. 13 lines 2 and 3). Mr. Marsh applied for registration in Florida as a motor vehicle service agreement company salesman using Department form DI4-161 on August 31, 1984 (Petitioner's Exhibit 1). That form posed the question "Has your application for license ever been declined by this or any other Insurance Department or has your license or eligibility to hold a license ever been declined, suspended, revoked, placed on probation or administrative fine levied? If answer is "YES," give full details: Mr. Marsh answered no. The Department of Insurance learned that Mr. Marsh's license in the State of New York had been revoked after he received his Florida motor vehicle service agreement salesman license. The Department then sought an explanation of his original answer to question 5 above in an amended application filed December 13, 1985 (Petitioner's Exhibit 3). In his amended application Mr. Marsh then stated "To my knowledge my license was never suspended or revoked . . . I had mail going to many different addresses and know that I didn't receive all of it." (Petitioner's Exhibit 3) Mr. Marsh's testimony at the hearing that he signed the return receipt for the revocation notice, as well as the copy of the return receipt for the revocation letter from the Insurance Department of the State of New York rendered this first explanation unworthy of belief. Mr. Marsh explained at the hearing that he thought question 5 referred only to discipline of a service agreement license, but the New York revocation was for a casualty license, and therefore did not have to be disclosed (Transcript, p. 13, lines 6-9). Not only is this a strained interpretation of the question, it is not the explanation Mr. Marsh gave to the Department in his amended application, and apparently was developed between the date of the amended application and the date of the final hearing. This belated excuse for nondisclosure of the New York license revocation is also rejected.
Recommendation It is recommended that the motor vehicle service agreement company salesman license issued to Robert T. Marsh be REVOKED for misstatements or misrepresentations made in his application for licensure which have demonstrated a lack of fitness or trustworthiness to engage in business authorized under Chapter 634, pursuant to Sections 634.181(1), (5) and 634.191(1), Florida Statutes (1983). DONE AND ORDERED this 7th day of May 1986, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May 1986.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Suzanne Van Wyk, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Parties’ Settlement Stipulation and Motion to Relinquish Jurisdiction, 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 hereby ORDERED that this case is CLOSED. Filed June 20, 2013 10:33 AM Division of Administrative Hearings DONE AND ORDERED this ee) day of June, 2013, in Tallahassee, Leon County, Florida. MELawenbaak. Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this ad. day of June, 2013. 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 Rules of Appellate Procedure. JB/jde Copies furnished: Lynette Whitehurst, Esquire Blanchard, Merriam, Adel and Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 lwhitehurst@bmaklaw.com eroreerrre rarer ee seiseG ; ASYS } Michael J. Alderman, Esquire Department of Highway Safety 2900 Apalachee Parkway, MS61 Tallahassee, Florida 32399 Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF MOTORIST SERVICES, Petitioner, vs. Case No. 13-0723 TANOS AUTO SALES, INC., Respondent. ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the joint Settlement Stipulation and Motion to Relinquish Jurisdiction, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 21, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 18th day of June, 2013, in Tallahassee, Leon County, Florida. Un Wit SUZANNE VAN WYK 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 18th day of June, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 Dock A. Blanchard, Esquire Blanchard, Merriam, Adel and Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 Lynette Whitehurst, Esquire Blanchard, Merriam, Adel and Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 mikealderman@flhsmv.gov STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, Case No.: 13-0723 v. TANOS AUTO SALES, INC., Respondent. / SETTLEMENT STIPULATION AND MOTION TO RELINQUISH JURISDICTION Petitioner, Department of Highway Safety and Motor Vehicles, and Respondent, Tanos Auto Sales, Inc., stipulate and agree to a settlement of this matter and move for relinquishment of jurisdiction for the purpose of entering a Final Order of the Department incorporating this Settlement Stipulation in the above-styled matter, as follows: 1. Petitioner agrees to dismiss the Administrative Complaint with prejudice. 2. Respondent agrees to a non-renewal of his motor vehicle dealer license for the period of May 1, 2013 through May 31, 2013. 3. Respondent agrees to pay an administrative fine of one thousand dollars ($1,000.00), within 30 days of the date of the Final Order. 4. If Respondent pays the amount specified in paragraph three above within the specified time, the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay the amount specified in paragraph three above on or before the date provided in the Final Order, on the day following the payment date specified, Respondent’s motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. 5. If after suspension for failure to pay the fine, as provided for in paragraph four, Respondent pays the amount specified in paragraph three above within 30 days following the date of suspension, its motor vehicle dealer license will immediately be reinstated without further penalties or sanctions. However, if Respondent fails to pay the amount due by the 30" day following the date of suspension, on the 31" day following the date of suspension Respondent’s motor vehicle dealer license shall be revoked by the Department without further notice. 6. If the Department suspends or revokes Respondent’s motor vehicle dealer license for non-payment as specified in paragraphs four and five above, 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. 7. It is expressly understood that this Settlement Stipulation has no force and effect until the Department enters a Final Order adopting same. 8. Respondent and the Department fully understand that this Settlement Stipulation, and the subsequent Final Order incorporating same, will not in any way preclude additional proceedings by the Department against Respondent for acts or omissions not specifically detailed in the Administrative Complaint filed in this matter. 9. Respondent and the Department expressly waive all further procedural steps and Respondent expressly waives all rights to seek judicial review of or otherwise challenge or contest the validity of this Settlement Stipulation and the Final Order of the Department. 10. Respondent and the Department each waives the right to seek any attorney’s fees or costs from the other party in connection with this administrative proceeding. WHEREFORE, the parties move the Administrative Law Judge for the entry of an order returning jurisdiction of this matter to the Department. de Signed this day of , 2013 Signed this ‘7 day of _~Swt@ __, 2013. Mich’ i Deputy General Counsel Florida Bar No. 0242357 Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida, 32399 Attorney for Petitioner Ismail Osman, President Tanos Auto Sales, Inc. ~ : Signed this \-] day of (ane _, 2013. - am te Lynetté Whitehurst, Esquire Florida Bar No. 092145 Blanchard, Merriam, Adel & Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 Attorney for Respondent oO
Findings Of Fact At all times relevant thereto, respondent, William Reinhart, was licensed to operate a commercial driving school called Easy Method Auto Driving School at 920 North Dixie Highway, Suite 144G, Pompano Beach, Florida. He is holder of commercial driving instructor certificate card number 6634 and commercial driving school license number 2460 issued by petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (agency or Division). Reinhart has owned and operated his driving school since 1976. The school presently has four instructors, including Reinhart. Beginning in April, 1986 respondent undertook the driving instruction of Kathleen McKeever, a thirty-two year old female who resides in Boca Raton, Florida. Prior to their lessons, the two had never met. She selected respondent's firm by chance out of the telephone directory. McKeever took approximately five or six one-hour driving lessons from Reinhart between April and June, 1986. On the first two lessons, Reinhart placed his hand in McKeever's lap while she was driving. She thought this was unusual but believed it might have been necessary in the event Reinhart had to suddenly grab the wheel. 1/ She did not voice any objection to his actions at that time. On the third or fourth lesson, the two drove on I-95 in Fort Lauderdale. While heading north on that roadway Reinhart reached over and placed his hands on her breasts and "private areas." McKeever at once began "squirming" in her seat. Reinhart then asked her if she minded him flirting with her, and she responded "yes", but he did not stop. The actual length of time in which Reinhart fondled McKeever was not disclosed, but McKeever stated she feared having an accident on I-95 while this occurred. After the lesson was over, McKeever did not disclose the incident to her family or friends because she was embarrassed and afraid it would upset her mother, who was home recuperating from heart bypass surgery. Fearing possible distress to her mother if she suddenly quit her lessons, McKeever decided to return for another driving lesson in June, 1986. At the beginning of the lesson, Reinhart placed his hand in her lap but she pushed it away. Later on, Reinhart offered McKeever $100 if she would give him a "blow job." She told him she wasn't a prostitute. The lesson ended a few minutes later when McKeever stalled the car in a parking lot and it would not restart. She was forced to telephone her family to get a ride home. After the lesson, McKeever telephoned a local television station (WPLG) and asked if the station would send a reporter to investigate the incident. When the station declined, she reported the incident to the Division. The emergency suspension of respondent's two licenses followed on July 21, 1986. According to the chief of the Division's driver improvement bureau, Reinhart's conduct constituted a lack of good moral character as well as a threat to the safety of others since the incidents occurred while a student (McKeever) was driving the vehicle in traffic. He also stressed the fact that an instructor should have good moral character because of the trust which students place in their instructor. Respondent offered two witnesses on his behalf, one a current instructor and the other a former office manager of the driving school. The office manager related that McKeever had never voiced any complaints to her, and that it was not unusual for every instructor to receive complaints from students at one time or another. However, she acknowledged that no complaints had ever involved sexual harassment. The second witness, an instructor, characterized the job of an instructor as being difficult because of the nervous and erratic nature of students. Although he stated it was necessary to keep his left hand near the student for the purpose of grabbing the steering wheel, he acknowledged that this would not require an instructor to place his hand in the student's lap. Respondent denied McKeever's allegations stating she had concocted the story because McKeever was not progressing well in her training and needed an excuse for ending the lessons. Through cross-examination of his counsel, he also suggested that McKeever might have long-standing psychological problems which prompted her to fabricate the story. However, Reinhart's version of events and contentions concerning possible psychological problems on the part of McKeever are not deemed to be credible and are accordingly rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's instructor certificate card number 6634 be REVOKED for violating Rules 15A-2.09(2)(a) and 15A-2.11(1)(a), Florida Administrative Code. The charges concerning respondent's driving school license number 2460 should be DISMISSED and the license immediately reinstated. DONE and ORDERED this 26th day of September, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1986.
Conclusions _ This matter came before the Department for entry of a Final Order pursuant to an order closing the file at the Division of Administrative Hearings. The record reflects that the parties have settled their dispute and entered into a Settlement Stipulation. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: 1. Respondent shall pay a civil fine of $5,000.00. Payment shall be made in the form of a certified cashier’s check payable to The Department of Highway Safety and Motor Vehicles and delivered to the Division of Motor Vehicles, Bureau of Field Operations, Region IV Office, at 1354 South Woodland Boulevard, Deland, Florida, 32720. Payment shall be delivered as set out herein within thirty (30) days of the entry of this final order by the Division of Motor Vehicles approving this settlement. Jan 2? 2010 11:57 DHSMY LEGAL TLH Fax: 850-617-5112 Jan 2? 2010 11:56am 002/009 2. Respondent agreed to voluntarily surrender its motor vehicle dealer license within thirty (30) days of the entry of this final order by the Division of Motor Vehicles approving the settlement. 3. Respondent expressly and affirmatively agreed that if it fails to timely pay the fine or to surrender its license as set forth herein the Petitioner will revoke its license without prior notice. Respondent further expressly and affirmatively waives its ability to challenge or appeal such revocation by any means in any forum whatsoever. 4. Florida Luxury Coach, LLC, may file an application for a motor vehicle dealer license pursuant to section 320.27, Florida Statutes. If Florida Luxury Coach, LLC, does apply, the: following conditions will apply: (a) The Petitioner will not rely on the violations alleged in the administrative complaint in this matter to deny the application or otherwise hold such violations against Florida Luxury Coach, LLC. (b) _—_- Victoria L. Scott will be the sole manager/member of Florida Luxury Coach, LLC. (c) Lon Neuville may be employed by Florida Luxury Coach, LLC, solely in a sales capacity. : (d) Victoria L. Scott and Florida Luxury Coach, LLC, expressly and affirmatively agree that no motor vehicle dealer license will be issued to it until the civil fine agreed to herein is paid and until the Respondent surrenders its motor vehicle dealer license. (e) Florida Luxury Coach, LLC, must meet the normal qualifications imposed by statute and administrative rule for issuance of a motor vehicle dealer license. (63) Failure to abide by the conditions of this agreement will be grounds for denial. or revocation of a motor vehicle dealer license to Florida Luxury Coach, LLC and Victoria L. Scott. 5. Victoria L. Scott signed the agreement individually, as a member of the Respondent and as a member of Florida Luxury Coach, LLC. 6. Each party shall bear its own costs and attomey fees in this matter. DHSMV LEGAL TLH Fax: 850-617-5112 Jan 2? 2010 11:56am P003/009 7. The undersigned warrant that they entered into this agreement freely and voluntarily and are doing so under advice of legal counsel. They further warrant that they have the full authority of their respective parties to enter into the agreement and to bind the parties to its terms. 8. Each party will bear its own costs and attorney fees. It is further ORDERED that the Settlement Stipulation of Petitioner and Respondent is adopted and incorporated into this Final Order f the Department in accordance with its terms. DONE AND.ORDERED this 2b ay of January, 2010, in Tallahassee, Leon County, Florida. Copies furnished: Michael J. Alderman, Esquire Senior Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kixkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 Peter N. Hill, Esquire Wolff, Hill, McFarlin & Herron, P.A. 1851 West Colonial Drive Orlando, Florida 32804 A A. FORD, Directo Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkanan Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this day of January, 2010. Jan 2? 2010 OHSMV LEGAL TLH Fax: 850-617-5112 J.D. Parish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 William Camper Hearing Officer Division of Motor Vehicles Julie Gentry Chief, Bureau of Field Operations Nalint Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 11:5? Jan 27 2010 11:57am 004/009
The Issue The issues in this case are whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment; violated Florida Administrative Code Rule 61J2-2.027(2), by failing to disclose material information in her application; and, if so, what, if any, penalty is appropriate. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules adopted in the Florida Administrative Code in effect on the date of this Order.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate broker pursuant to license number 0421942. The last license issued to Respondent was as a broker t/a Action First Realty, 7622 Praver Court, Jacksonville, Florida 32217. On January 9, 1984, Respondent applied for a license as a real estate salesperson. On February 11, 1993, Respondent applied for a license as a real estate broker. On each application, Respondent signed a sworn affidavit that all of her answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . In relevant part, question six on the sales license asked Respondent whether she had ever been arrested or charged with the commission of an offense against the laws of any municipality or state without regard to whether she was convicted. Question nine on the broker application asked Respondent whether she had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no" to both questions. In each case, Petitioner relied on the accuracy of the application and issued a license to Respondent. On November 7, 1978, Respondent was adjudicated guilty of cashing a worthless check in the amount of $5.00. Respondent wrote the check to Carvel Ice Cream for a birthday cake for her daughter's birthday. Respondent was in the process of moving, and the notice of insufficient funds was not delivered to her. Respondent went to court and paid the $5.00 check and the court costs. The judge characterized the charge as frivolous and was perturbed that the charge consumed time in his court. On October 30, 1980, adjudication was withheld on the charge of driving with a suspended license. Respondent attended driving school. The offense does not appear on Respondent's Florida driving record for her entire driving history. Respondent did not willfully misstate a material fact on either application. Respondent testified under oath that she did not consider either offense to be a crime and did not try to lie about either offense. Her testimony was credible and persuasive. Respondent answered "no" to questions six and nine on her applications in the good-faith belief that the offenses were immaterial and not the type of offenses addressed in either question. When Petitioner's investigator interviewed Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), finding Respondent guilty of violating Rule 61J2-2.027(2), and imposing no penalty. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999. COPIES FURNISHED: Geoffrey Kirk, Esquire Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801-1900 Barbara Lynn Clarke 7622 Praver Court Jacksonville, Florida 32217 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner's race.
Findings Of Fact Petitioner, Phillip McTaggart, is a white male who retired after more than 20 years in the United States Air Force (including the reserves), and 18 years with Delta Airlines. Respondent, Pensacola Bay Transportation Company, specializes in the transportation of people with special transportation needs, including the elderly, disabled, and economically disadvantaged. Respondent contracts with the Escambia Area Transit Service, the local coordination board of the Florida Commission for the Transportation Disadvantaged, to provide these services. Many of Respondent's customers are wheel-chair bound or otherwise need assistance with transportation. Respondent uses both automobiles and specially designed buses for the transportation of wheel-chair bound customers. Petitioner applied for a job with Respondent by filling out an application on January 20, 2009. His application did not specify for which position he was applying. Respondent had hired a white driver just days before Petitioner's application. Respondent hired three African- American drivers after Petitioner applied. Each of the hired drivers stated on their applications that they were applying for driver positions. The last driver hired by Respondent in 2009 was on April 13. All of the drivers hired after Petitioner applied had submitted their application before Petitioner applied. Each of the hired drivers' application reflected previous wages in line with wages paid to other drivers in the Pensacola area. Petitioner's application showed he had earned wages at his previous jobs that significantly exceeded the wages Respondent was paying its drivers. Petitioner testified that he either re-applied or updated his application for a driver position in May 2009, but Respondent has no record of the subsequent application. Petitioner contends, through the use of a vocational expert, that Respondent hires minority candidates for its driver workforce at a rate that far exceeds the demographics of the Pensacola area. Also, a large number of the drivers are minority women, who statistically receive lower wages than white male employees based upon national Department of Labor figures. Petitioner contends that he was discriminated against by being a white male with a history of receiving higher wages than the typical driver employed by Respondent. Some companies refuse to hire individuals they believe are overqualified for the position for which they apply. The reasons for this failure to hire the "overqualified" are that they command higher wages, as well as a general fear they will leave to seek higher-paying employment. Petitioner listed on his application his previous experience in the Air Force as an aircraft mechanic. He listed his previous experience with Delta Airlines as a customer service agent in public relations, baggage, and ticketing. Nowhere did Petitioner hint at previous experience as a driver. Petitioner's updated resume, which he testified he supplied to Respondent with his application failed to make mention of any professional driving experience. He testified at hearing, however, that when he went to update his application in May 2009, he told Respondent's personnel that he had driving experience from his time serving in the Air Force. Respondent is a unionized company that operates under a collective bargaining agreement (CBA). Its wages are set by the CBA. Petitioner's vocational expert was not aware of the company's union status when she performed her wage study for the Pensacola area. Respondent inherited many of its employees from a company it acquired in 2001. The company was required to keep these employees at the wages they were already receiving under the CBA. Respondent had never hired a driver with an employment background matching Petitioner's. Tammie Nelms, the human resources manager for Respondent, liked the fact that Petitioner had such a stable work history. She would have called him back had she known he was seeking a driver position. Although Respondent has a box full of driver applications (about 50 applied in 2009 alone), few whites apply for driver positions at Respondent's Pensacola location. The company has three white maintenance workers in the Pensacola location. White drivers more commonly apply at Respondent's Santa Rosa County location. Respondent has a policy of non-discrimination in the hiring of employees.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of June, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 June, 2010. COPIES FURNISHED: Ryan M. Barnett, Esquire Whibbs & Stone, P.A. 801 West Romana Street, Unit C Pensacola, Florida 32501 Elizabeth Darby Rehm, Esquire The Kullman Firm Post Office Box 1287 Mobile, Alabama 36633 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2900 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2900 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
