The Issue Is Ann L. Bell (Ms. Bell) entitled to the issuance of a license to act as an independent motor vehicle dealer through A & B Auto Sales of Jacksonville, Inc. (A & B), that license to be issued by the Department of Highway Safety and Motor Vehicles (the Department)? See Section 320.27, Florida Statutes.
Findings Of Fact Ms. Bell made application to the Department for an independent motor vehicle dealer license. The name of the business would be A & B. The location of the business would be 7046 Atlantic Boulevard, Jacksonville, Florida. In furtherance of the application Ms. Bell received a certificate of completion of the motor vehicle dealer training school conducted by the Florida Independent Automobile Dealers Association on January 26 and 27, 1999. Ms. Bell submitted the necessary fees and other information required by the Department to complete the application for the license, to include the necessary surety bond. At present Ms. Bell lives at 98 Kent Mill Pond Road, Alford, Florida, some distance from Jacksonville, Florida. Ms. Bell intends to move to Jacksonville, Florida, if she obtains the license. Ms. Bell's work history includes a 35-year career with the State of Florida, Department of Insurance, from which she retired as a Deputy Insurance Commissioner. Her duties included supervision of employees and auditing. More recently Ms. Bell has worked as an insurance agent for approximately five years with Allstate Insurance. Ms. Bell also had 17 years' experience involving a business with her former husband in retail floor covering in which she dealt with sales staff and contracts. During another marriage, her then-husband was involved in the automobile business in Mobile, Alabama, as well as the Florida panhandle. Ms. Bell was not an employee of the automobile business conducted by her husband. Ms. Bell was "in and out" of the dealership and attended automobile auctions with her husband. Ms. Bell intends to locate her dealership at the address where Mr. Badreddine formerly operated an independent motor vehicle dealership. Ms. Bell has known Mr. Badreddine for approximately 10 to 12 years. Ms. Bell has purchased cars from Mr. Badreddine. Ms. Bell has borrowed money from Mr. Badreddine. Mr. Badreddine has borrowed money from Ms. Bell. Ms. Bell has a lease related to the location where she would operate her dealership. At present Ms. Bell is using the prospective business location to collect on some accounts for automobiles purchased through Mr. Badreddine in which Ms. Bell has bought the accounts receivable from Mr. Badreddine. The arrangement concerning the accounts receivable is one in which Mr. Badreddine is expected to assist in the collection of monies owed on the accounts. The customers involved with those accounts are Arabs and African Americans. Mr. Badreddine is fluent in Arabic. The amount of money which Ms. Bell has invested is approximately $35,000, in relation to the purchase of the accounts receivable. If Ms. Bell obtains the license she intends to employ Mr. Badreddine to sell automobiles at her lot and to be involved in the purchase of cars at automobile auctions. These duties would be in addition to the collection on the accounts receivable which Ms. Bell purchased from Mr. Badreddine. Ms. Bell does not intend to allow Mr. Badreddine access to the company bank accounts or the completion of the necessary paperwork when cars are sold to the public from her business. In the past, Mr. Badreddine held independent motor vehicle dealer licenses issued by the Department. He lost those licenses based upon unacceptable performance under their terms. Ms. Bell is not unmindful of Mr. Badreddine's performance as a licensee, being informed by the Department in the details. Mr. Badreddine held an independent motor vehicle dealer's license under the name A & D Wholesale, Inc. (A & D), for a business at 9944 Beach Boulevard, Jacksonville, Florida. The Department issued an administrative complaint against that license in Case No. DMV-94FY-566, concerning problems in cars sold by A & D in which the titles and registrations were not transferred appropriately and emissions tests were not performed appropriately. This case was disposed of through an informal hearing and a $5,000 administrative fine was imposed. A further complaint was made against the licensee for the business A & D under an administrative complaint drawn by the Department in Case No. DMV-97FY-621. This complaint involved problems in title and registration transfer, failure to pay an existing lien on a trade-in, and the payment for automobiles obtained in automobile auctions upon which the drafts were not honored. No request for an administrative proceeding was received in relation to this administrative complaint. A final order was entered which revoked the independent motor vehicle dealer's license in relation to A & D. Subsequently, Mr. Badreddine made an application for an independent motor vehicle dealer's license under the business name King Kar Auto Sales, Inc. (King Kar) for the address at which Ms. Bell would operate her business. The decision was made to grant Mr. Badreddine's request for an automobile dealer license for King Kar. Following the grant of the license to King Kar an administrative complaint was brought in Case Nos. DMV-99FY-165 and DMV-99FY-166. The complaint involved the failure to pay off a lien, in which a check intended to settle the account with the lien holder was dishonored and falsification of the application in support of the license for King Kar. The final order disposing of these cases was premised upon the recognition that the license for King Kar had been revoked by virtue of the failure to maintain the necessary surety bond, rendering the allegations in the complaint moot. In the conduct of his automobile business Mr. Badreddine was accused of obtaining property in return for a worthless check involved in dealings with GMAC Corporation. The check was in the amount of $16,671.38. This action was taken in the case of State of Florida vs. Amine Badreddine, in the Circuit Court of Duval County, Florida, Case No. 98-13690CFCR-E. Mr. Badreddine entered a plea of guilty to obtaining property in return for a worthless check and was placed upon probation for a period of one year, with a requirement to make restitution. Adjudication of guilt was withheld. In a discussion between Ms. Bell and Cindy King, Department Compliance Examiner and Nadine Allain, Regional Administrator for the Department, Ms. Bell told the Department employees that Ms. Bell would need Mr. Badreddine to go to the automobile auctions and that "she didn't think it was lady-like to go to an auction." This is taken to mean that Ms. Bell did not believe she should go to the automobile auctions. Ms. Bell also told the Department employees that she needed Mr. Badreddine to sell automobiles for her, that he was a good salesman and that he was good at dealing with Arabs and she was not. Ms. Bell noted that she didn't live in the area where the dealership would be operated and referred to her purchase of the accounts receivable. Ms. Bell told the Department employees that Mr. Badreddine would be given an office in the back of the dealership or in the dealership. Ms. Bell told the Department employees that "she knew absolutely nothing about selling cars." Ms. Bell indicated that she would be relying upon Mr. Badreddine for advise in running her dealership. The reliance on Mr. Badreddine to deal with Arab clients was mentioned pertaining to the circumstances with the previous accounts receivable. The Department offered to license Ms. Bell upon condition that Ms. Bell provide an affidavit to the effect that Mr. Badreddine would not be involved with her dealership. Ultimately, Ms. Bell did not accept this overture. In denying the application for the independent motor vehicle dealer's license the Department gave the following reasons: Your admission of not knowing anything about the car business coupled with your stated intention to rely on the advice and experience of Mr. Amine Badreddine to operate your dealership means that Mr. Badreddine is, de facto, the dealer. Mr. Badreddine previously held independent motor vehicle dealer license number VI-15265, as A & D Wholesale, Inc. An administrative complaint was filed by the department against his dealership involving consumer complaints filed by Gladys L. Stevens, complaint number 93110148; Merrian A. Coe, complaint number 94010340; and Richard Green, complaint number 94030339. As a result of the administrative action, Mr. Badreddine's license was found in violation and fined $5,000.00 for failure to apply for transfer of title within 30 days, issuing more than two temporary tags to the same person for use on the same vehicle, violation of any other law of the state having to do with dealing in motor vehicles, failure to have a vehicle pass an emissions inspection within 90 days prior to retail sale and failure to transfer title. On December 23, 1996, a second administrative complaint was filed against A & D Wholesale, Inc. because of complaints received from Mark S. Smith, complaint number 96020168; Telmesa C. Porter, complaint number 96050435; Nijole Hall, complaint number 96070365; Ella Didenko, complaint number 96080083; Salih Ferozovic, complaint number 96100067; Charles R. Wells, complaint number 9610068; and Adessa Auto Auction, complaint number 96110372. As a result of this administrative action, a Final Order was issued on January 27, 1997 revoking Mr. Badreddine's independent motor vehicle dealers [sic] license for failure to apply for a transfer of title within 30 days, - failure to comply with the provisions of section 319.23(6), F.S., failure to have a vehicle pass an emission inspection prior to retail sale, issuance of more than two temporary tags to the same person for use on the same vehicle, failure to have a title or other indicia of ownership in possession of the dealership from the time of acquiring the vehicle until the time of disposing of the vehicle, failure of a motor vehicle dealer to honor a check or draft. Mr. Badreddine applied for and was issued another motor vehicle dealer's license on April 24, 1998, under the name King Kar Auto Sales, Inc. The license was revoked on October 20, 1998, because of a surety bond cancellation. On November 24, 1998, the department received a complaint from Treflyn N. Congraves, complaint number 98070299. Ms. Congraves filed a complaint with the state attorney which resulted in Mr. Bareddine [sic] being placed on probation for issuing a bad check to GMAC and ordered to pay restitution in the amount of $16,571.38. Mr. Badreddine is currently on probation. The department's investigation showed that Mr. Badreddine had a history of bad credit, failed to continually meet the requirements of the licensure law, failed to honor a bank draft or check given to a motor vehicle dealer for the purchase of a motor vehicle by another motor vehicle dealer, and had failed to satisfy a lien. Consequently, Mr. Badreddine's poor performance as a dealer forces us to deny a license where he may have a financial interest, active participation in the management, sales or any part in the operation of the dealership.
Recommendation Upon consideration of the Facts Found and the Conclusions of Law reached, it is RECOMMENDED: That a final order be entered which grants Ann L. Bell an independent motor vehicle dealer license for the business A & B. DONE AND ENTERED this 17th day of November, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1999. COPIES FURNISHED: Edward P. Jackson, Esquire Jackson & Mason, P.A. 516 West Adams Street Jacksonville, Florida 32202 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 Tallahassee, Florida 32399-0500
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 primary issues for determination are whether Respondent committed a myriad of violations of Section 320.27, Florida Statutes, which provides certain requirements applicable to motor vehicle dealers. The violations alleged to have been committed by Respondent are inclusive of failures to display a consumer sales window form, to keep certain records of purchases and sales, to keep proper records of temporary tags, and not possessing required proper proof of ownership of two vehicles. In the event that Respondent committed these violations, an additional issue is what administrative penalty should be imposed.
Findings Of Fact 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. Respondent is, and has been at all times material hereto, a licensed independent motor vehicle dealer in Florida, having been issued license number VI-13051. Petitioner issued the license based upon an application signed by Sudarshan Kuthiala, as President. Respondent's address of record is 5895 St. Augustine Road, Suite No. 8, Jacksonville, Florida 32207. Respondent's president is Sudarshan Kuthiala. On or about March 12, 2004, Petitioner's compliance examiner conducted an annual records inspection of Respondent's dealership. The purpose of that inspection was to determine whether the dealership was complying with statutory and rule requirements. Arrangements to conduct the inspection were made at least a week ahead of time. At the time of the March 12, 2004 inspection, the compliance examiner found that Respondent did not have the "Buyer's Guide" required by federal law and known as a “consumer sales window form,” properly displayed on a vehicle, a 1995 Nissan, Vehicle Identification Number (VIN) 1N6SD16S25C386012, being offered for sale by Respondent. Also, during the March 12, 2004 inspection, the compliance examiner reviewed five purchases and sales of motor vehicles made by Respondent. The examiner discovered that records of two of the vehicles involved did not contain any documentation of the method or proof of purchase or the required odometer disclosure statement at time of acquisition. Another of the vehicles did not have the odometer disclosure statement upon its disposition. An examination during the March 12, 2004 inspection of Respondent's temporary tag log found that the log was incomplete. Respondent's temporary tag log did not include the name and address of the person to whom a temporary tag for a vehicle had been assigned. A follow-up inspection of Respondent's dealership was conducted on June 23, 2004. An appointment for that inspection was made at least one week ahead of time. In the course of that June 23, 2004 inspection, Petitioner's examiner discovered Respondent did not display the required "Buyer's Guide" or “consumer sales window form” required by federal law on a 1992 Mercury automobile with VIN 1MEPM6043NH616615, being offered by Respondent for sale. Further, Respondent's records did not contain the odometer disclosure statement of that vehicle when it was acquired. Additionally, Respondent did not have a title or other proof of ownership of the 1992 Mercury automobile. During the June 23, 2004 inspection, Petitioner's examiner also discovered that records of three purchases and sales of motor vehicles made by Respondent were deficient. Records for two of the vehicles did not have the method or proof of purchase or odometer disclosure statement upon acquisition. Records for one of the vehicles did not have the required odometer disclosure statement upon disposition of the vehicle. The June 23, 2004 inspection also revealed that Respondent's temporary tag log was incomplete. The log did not reveal the name and address of a person to whom a temporary tag was issued or the vehicle identification number of the vehicle for which the temporary tag was issued. Following both of the inspections recounted above, neither Sudarshan Kuthiala nor anyone else on behalf of Respondent offered to provide the missing records or account for them. In the course of attendance at training school for dealers, Sudarshan Kuthiala was informed of the required forms and the process for their preparation. Also, Respondent's records have been inspected in the past and recordkeeping requirements further explained to Kuthiala.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Petitioner enter a final order revoking Respondent’s license. DONE AND ENTERED this 18th day of August, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2005. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399 Sudarshan K. Kuthiala 2961 Bernice Drive Jacksonville, Florida 32207 Fred O. Dickinson, III, Executive Director Department of Highway Safety and Motor Vehicle Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicle Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
Findings Of Fact Respondent, Dick's Auto Sales, Inc., is the holder of a motor vehicle dealer license issued by the Petitioner, Department of Highway Safety and Motor Vehicles ("the Department"). Richard R. Borst ("Borst") is the president of Respondent Dick's Auto Sales, Inc., and one of two stockholders in the company. At all times material hereto, the Respondent maintained a business address at 110 N.W. 18th Avenue, Delray Beach, Florida. Borst also operates an auto parts business at the same address as the motor vehicle dealership. On or about June 9, 1989, Borst appeared before the Honorable James C. Payne, U.S. District Judge for the Southern District of Florida, and entered a plea of guilty to aiding and abetting the transportation of stolen motor vehicle parts in violation of Title 18 U.S.C. Section 2314 & 2 in Case Number 89-6032- Cr-PAYNE-(01), United States v. Richard Borst,. Based on the plea entered and the plea agreement then before the court, Borst was adjudicated guilty in a Criminal Judgment dated June 28, 1989. Imposition of a sentence of confinement was suspended and Borst was placed on probation for a period of three (3) years. Borst was also fined Fifty Dollars ($50.00). Borst's conviction arose in connection with his purchase of auto parts from a "chop shop" (i.e., an operation which dismantled stolen cars and sold the parts,) in the Connecticut area. The purchase took place in May, 1987. In April, 1988, Borst met with state and federal investigators and agreed to fully cooperate with a task force set up to investigate the operation. He also agreed to testify against the individuals involved. While Borst was in Connecticut waiting to testify, the other defendants entered guilty pleas. In Respondent's initial dealer license application dated September 24, 1987, Borst stated under oath that he was not facing criminal charges. On April 27, 1989, Borst, as president of Respondent, signed an application to renew Respondent's license, stating under oath: Under penalty of perjury, I do swear or affirm that 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. On January 18, 1989, Borst and his attorney signed a "Consent to Transfer of Case for Plea and Sentence", in United States v. Richard Borst, Criminal No. B-89-6-(TFGD), United States District Court for the District of Connecticut (the "Connecticut Case"). This document expressly acknowledges that an Information was pending against Borst in the United States District Court for the District of Connecticut, that Borst wished to plead guilty to the offense charged, and that he consented to the disposition of the case in the Southern District of Florida. The Information entered in the Connecticut Case, charged Borst with violation of 18 U.S.C. Sections 2314 and 2, for transporting motor vehicle parts in interstate commerce knowing them to have been stolen. The date of this Information was not established, but it was clearly on or before January 18, 1989. Thus, sometime prior to January 18, 1989, Borst was charged with criminal violations of 18 U.S.C. Sections 2314 and 2, and these charges were pending when Borst signed and filed Respondent's renewal application for 1989. Petitioner contends that Borst's conviction is directly related to the business of being a motor vehicle dealer, especially since Borst operates a motor vehicle parts business in conjunction with his motor vehicle dealership. However, the evidence presented provided only a very limited factual background regarding the conviction, none of Petitioner's representatives talked with the investigators or prosecutors in the criminal case and no evidence was presented regarding the Respondent's role in the transactions leading to Borst's conviction. At the time of the hearing, Borst was fifty-three (53) years of age. Within the last twenty-four (24) months, he has suffered numerous health problems including a nervous breakdown which necessitated an eighteen (18) week period of confinement to his residence for rest. He currently undergoes twice- weekly therapy with a psychiatrist and has been taking an antidepressant prescription. In addition, in October of 1989, he was admitted to the hospital for a heart condition. Subsequently, a balloon angioplasty was performed on him. He was later re-admitted to the hospital for five (5) days as a result of post surgery complications. He is also an insulin dependent diabetic. He attributes most of these health problems to the stress and turmoil of his criminal conviction. In light of his emotional and physical condition, he has been required to reduce his work load. Borst has been actively trying to sell the existing business in order to retire the outstanding indebtedness on the business and the property on which it is located. There is no evidence that the Respondent and/or any of its duly elected officers or stockholders have ever been subjected to any other complaints and/or investigations by the Department or by any other investigatory or regulatory agency during the past seventeen (17) years since it was originally licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a Final Order which finds Respondent not guilty of the violation alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990. J. STEPHEN MENTON 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 5th day of June, 1990.
Findings Of Fact Based on the evidence adduced at hearing, the undersigned makes the following findings of fact: Respondent holds a license issued by Petitioner which permits it to engage in the business of a motor vehicle dealer at 9901 N.W. 80th Avenue, Bay 3C, Hialeah Gardens, Florida. On Friday, September 9, 1988, during normal business hours, Karen Reyes, who is employed by Petitioner as a License and Registration Inspector, visited this location to attempt to conduct an annual inspection of Respondent's records. The doors to the warehouse where the business was supposed to be located were closed and locked and no one was around the dealership. Reyes left a note requesting that a representative of the dealership contact her. She then-departed. Reyes returned to the location on Tuesday, September 20, 1988. Although it was mid-morning, the warehouse doors were closed and locked and there was no one present. Before departing, Reyes left a second note asking that she be contacted by someone from the dealership. The following day Reyes attempted to telephone the dealership. No one answered the phone, however, when she called. Reyes reported her findings to her supervisor. As a result, on October 20, 1988, Respondent's President, Javier F. Rodriquez, was sent a letter in which he was advised that Petitioner proposed to revoke Respondent's motor vehicle dealer license on the ground that Respondent had closed and abandoned its licensed location. The letter further advised that Respondent had the right to request a formal hearing before any final action was taken against it. Rodriquez responded to the letter by requesting a hearing at which he would have the opportunity to present proof that the dealership had not been closed or abandoned. In view of this response, Reyes was instructed by her supervisor to pay another visit to the dealership. She made this visit on Tuesday, November 8, 1988. This time she encountered two men at the location. There were also a couple of cars there as well. One of the men, who claimed to be a representative of the dealership, telephoned Rodriquez's wife and had her speak with Reyes. During their telephone conversation, Mrs. Rodriquez informed Reyes that her husband was still active in the automobile sales business, but that he was conducting his business at their home. At the conclusion of their discussion, Reyes asked Mrs. Rodriquez to have her husband call Reyes' office. Mr. Rodriquez telephoned Reyes' office on November 16, 1988. Reyes was not in, so Rodriquez left a message. Later, that day, Reyes returned the call, but was unable to reach Rodriquez. The following day, Reyes went back to the dealership, where she found the same two men she had met there on November 8, 1988. Rodriquez, however, was not at the dealership. Reyes therefore left. She came back later in the day. This time Mr. Rodriquez was present and he spoke with Reyes. When asked by Reyes why there was no business activity nor records at the licensed business location, Rodriquez responded that the dealership was now open every day from 9:00 a.m. to 4:00 p.m. He provided Reyes with no additional information. Reyes revisited the dealership on Friday, January 13, 1989, Wednesday, January 18, 1989, Thursday, January 19, 1989, and Monday, January 23, 1989, during normal business hours. On each of these occasions, she found no one at the location and the doors to the warehouse closed and locked. She made another visit on Monday, January 30, 1989. Although it was during normal business hours, there was no indication of any activity at the dealership. Furthermore, the sign which had identified the business had been removed. This prompted Reyes to speak with the leasing agent at the warehouse complex. The leasing agent told Reyes that Respondent was no longer occupying space at the complex.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's motor vehicle dealer license. DONE and ORDERED this 27th day of March, 1989, in Tallahassee, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1989. COPIES FURNISHED: Michael J. Alderman, Esquire Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0504 Javier F. Rodriquez, President Inrodar Auto Sales, Inc. 9901 N.W. 80th Avenue, Bay 3C Hialeah Gardens, Florida 33016 Charles J. Brantley, Director Department of Highway Safety And Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Department of Highway Safety And Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess a penalty of $1,250 pursuant to Section 316.545, Florida Statutes, regulating operation of a commercial vehicle on a highway in the State of Florida?
Findings Of Fact On June 27, 1991, Sergeant Tommy Jackson, observed a dump truck traveling eastward on 65C in Gadsden County, Florida. The Sergeant stopped the truck which did not have a tag. The driver of the truck, which did not have a name on it, was asked for the registration. The driver could not produce the registration. Sergeant Jackson called Officer Bennie Lee York, Jr., to come assist him in weighing the dump truck on portable scales. The vehicle weighed 60,000 pounds. The vehicle's serial number was checked through the Florida Division of Motor Vehicle's computer which determined the vehicle had no Florida tag or registration. Sergeant Jackson and Officer York went to the job site to which the truck was bound to verify the tag and registration of the vehicle. A Georgia registration and incorrect tag was presented. Sergeant Jackson went to his nearby home to call and verify the registration with the Georgia authorities in Atlanta, Georgia. Georgia reported no record of a tag for the vehicle in the State of Georgia. Sergeant Jackson returned to the job site and advised the job foreman that the State of Georgia did not report the vehicle as being registered in Georgia. About two hours later, Mr. Kinard of General Development brought a registration that matched the truck serial number. However, it was for a non-apportioned Georgia commercial tag. Officer York advised Mr. Kinard that an apportioned International Registration Plan tag or a Florida Commercial registration was required to operate a commercial vehicle in Florida. Officer York issued a load report to General Development assessing a penalty for being 25,000 pounds over the legal limit in the State of Florida of 35,000 for a commercial vehicle. The amount of the penalty was $1,250.00, or 5 cents for every pound of vehicle weight over 35,000 pounds. The Respondent admitted the violation, however, the Respondent's representative indicated in his plea for mitigation that the driver had taken the truck without authorization. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finalizing assessment of the $1,250.00 penalty assessed against General Development pursuant to Section 316.545, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February 1992. STEPHEN F. DEAN 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 26th day of February 1992. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Campbell, Secretary General Development Post Office Box 654 Quincy, Florida 32351 Ben G. Watts Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues in this case concern the question of whether Respondent is subject to the payment of a $2,078 fine for violation of Section 316.545, Florida Statutes. That statutory provision relates to operation of a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On April 9, 1990, a commercial vehicle operated by Respondent, as carrier, was stopped and inspected by Petitioner's inspector Deborah Charlene Andrews. This inspection took place in Jackson County, Florida. The commercial vehicle operated by Bobby Charles Alphin was weighed. It was determined that the gross vehicle weight was 76,560 pounds. Before entering Florida the commercial vehicle in question had been issued a fuel use trip permit effective April 8, 1990 through April 18, 1990. By contrast the commercial vehicle did not have either an apportioned, 10-day or single-trip vehicle registration which would allow it to operate in Florida on April 9, 1990. A copy of the fuel use emergency trip permit referred to before is found as Petitioner's Exhibit No. 1, admitted into evidence. A copy of the apportioned vehicle registration and identification cab card for the vehicle may be found as Petitioner's Exhibit No. 2, admitted into evidence. It does not reflect registration in Florida in the apportionment. Florida records do not reveal that a 10-day temporary International Registration Plan (I.R.P.) trip registration had been issued or a single trip permit issued registering the commercial vehicle in question. In the absence of such a registration allowing the trip in Florida, the inspector issued a trip permit registration upon the payment of a $30.00 fee as referred to in Petitioner's Exhibit No. 4, admitted into evidence. This exhibit is a copy of the I.R.P. trip permit. The trip permit that was issued allowed operation in Florida for 10 days. A copy of the load report and field receipt executed by the inspector may be found as Petitioner's Exhibit No. 3, admitted into evidence, which reflects the gross vehicle weight and the fact that this exceeded the legal weight of 35,000 pounds and the assessment a $.05 per pound fine for the weight above the legal weight. That fine is $2,078 for being overweight in the amount of 41,560 pounds. Again that overweight amount is derived in subtracting the allowed weight of 35,000 pounds from the gross vehicle weight of 76,560 pounds.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which fines the Respondent in the amount of $2,078 for violation of Section 316.545, Florida Statutes. DONE and ENTERED this 12th day of March, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, 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 12th day of March, 1991. APPENDIX The facts as proposed by the Petitioner are subordinate to fact found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Philip R. Polachek, General Manager Little Donkey Enterprises, Inc. Post Office Box 822 Estacada, OR 97023 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether the Respondent knowingly sold rebuilt vehicles without disclosing in writing to the purchaser, customer, or transferee that the vehicles were previously titled as rebuilt vehicles.
Findings Of Fact The Respondent, Charles R. Kuhn, III, is and was at all times relevant to the allegations in the administrative complaint a licensed independent motor vehicle dealer in Florida. The Respondent did business in the name A-1 Auto and Truck Center and was located at 12180-1 Phillips Highway, Jacksonville. The Department is the state agency authorized by statutes to regulate licensed independent motor vehicle dealers and to maintain the titles of motor vehicles in the State of Florida. Pam A. Albritton testified about her experiences buying a vehicle from the Respondent. On August 22, 2003, as reflected by the date on the installment sales contract, Albritton purchased a 2000 Volkswagen (VW), VIN (Vehicle Identification Number) 3 VWSD 29 M1YM 197846, for $8,281.80. The Respondent did not at any time provide Albritton with a written statement that the vehicle she purchased, VIN 3 VWSD 29 M1YM 197846, hereafter the Albritton vehicle or car, was a rebuilt vehicle and had been previously titled as a rebuilt vehicle. The Respondent did not tell Albritton that this vehicle was a rebuilt vehicle. Albritton did not see the certificate of title to the vehicle until after the sale of the vehicle. Albritton took the car to an authorized VW dealer in November of 2003 because it was not shifting gears properly. The dealer found that the vehicle had suffered extreme damage from an accident and needed extensive repairs to the engine control system and the airbag in order to make the car safe to drive. The dealer told Albritton what had been found and advised her not to drive the car until it had been repaired. Albritton confronted the Respondent about the problems with the vehicle, and the Respondent gave her a handwritten "warranty" dated November 20, 2003. Pursuant to this agreement, Albritton took the car to the Respondent to have the seatbelts fixed; however, the repairs did not actually make the belts safe because the seatbelt retractor mechanism would not lock. In December of 2003, the wheel bearings on Albritton's car broke, and she contacted the Respondent about getting the car fixed. She was informed that the Respondent was away for two weeks, and nothing could be done until he returned. Needing her car for transportation in her work, she paid $200 to have the wheel bearings repaired. Pursuant to a mediation agreement, Albritton agreed to settle her complaint against the Respondent on the basis that he would get her a comparable vehicle. The Respondent was supposed to contact Albritton within 30 days of the mediation but failed to do so. The records introduced at hearing show that Albritton's vehicle had been re-titled as a rebuilt vehicle. Such a title indicates that the vehicle in question had been written off as an insurance loss and the original title cancelled or destroyed. Thereafter, the vehicle was repaired, and the person making the repair obtained a new title, which when issued, showed that the vehicle was rebuilt. Aylwin S. Bridges testified regarding his purchase of a VW from the Respondent. On or about June 14, 2003, Aylwin S. Bridges, purchased a 2000 VW, VIN 3 VWTE 29 MXYM 135556, from the Respondent for $11,555.00. Neither prior to nor at the time of the sale did the Respondent provide Bridges a written statement that the 2000 VW, VIN 3 VWTE 29 MXYM 135556, was a rebuilt vehicle. The Respondent did not tell Bridges that the car he was purchasing was rebuilt. The records introduced at hearing show that the Bridges' car had been re-titled as rebuilt. Bridges did not see a certificate of title to the vehicle prior to the sale of the vehicle. The Bridges' vehicle had extensive mechanical problems. For example, the engine control module had been spliced into the car and several codes had been deleted from it; the seat belts would not work; and the horn would not work. When Bridges sought to trade the vehicle, he found that the most he was offered for the car was only $2,500 because it was rebuilt. The Respondent testified in his own behalf. He did not deny having failed to disclose to Albritton and Bridges in writing prior to selling them their cars that the vehicles had previously been titled as rebuilt vehicles. The Respondent introduced a general disclaimer, Respondent's Exhibit 7, which was provided to Albritton and Bridges. This disclaimer states that the purchaser is buying a used car and that used cars may have any one or more of the listed problems. The Respondent testified that he knew the cars were rebuilt, but felt he had complied with the legal requirements of disclosure by providing the buyers with the aforementioned disclaimer. The specifics of the disclaimer are discussed in the Conclusions of Law for purposes of continuity, but are findings of fact.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its final order finding that the Respondent violated Section 319.14, Florida Statutes, on two occasions; fine Respondent $1,000 for each violation; and suspend the Respondent's license for six months for each violation, said suspensions to run consecutively, and that payment of the fine be a condition precedent to re-issuance of a license. DONE AND ENTERED this 1st day of February, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2005. COPIES FURNISHED: Charles Patrick Kuhn, III A-1 Auto and Truck Center 12180-1 Philips Highway Jacksonville, Florida 32256 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Suite A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Suite B439 2900 Apalachee Parkway Tallahassee, Florida 32399
