The Issue Whether there is probable cause for petitioner to bring an action against respondents, or any of them, for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Mark Sherwood Turner started working for Gulf Coast Motors in 1982. At the time, Charles E. Pace owned all of the inventory and other assets of the business, a used car lot at 301 Beverly Parkway in Pensacola, Florida. When Mark Turner's name was added to the fictitious name papers, it was not because he had acquired an ownership interest in the business; it was done in order to effectuate an agreement between him and Mr. Pace: They had agreed that Turner could use the lot to display his own cars and otherwise to operate his own, independent used car sales business, without incurring the expense of obtaining his own motor vehicle dealer's license. In exchange, Turner was to run Pace's business in Pace's absence. They kept separate books, and neither Turner had an ownership interest in the cars sold to Messrs. Hayes, Allen and Crutchfield, or Ms. Youmans. Later Pace sold one Richardson the accounts receivable generated by Gulf Coast Motors. Richardson subsequently assigned to Mark Turner everything he had acquired from Pace. On March 11, 1983, the corporate respondent was organized and Mark Turner acquired an interest in Gulf Coast Motors, Inc. Mark's brother David Jerry Turner began working at the used car lot a year or two before the final hearing. He came in three days a week, worked in the office and occasionally acted as a salesman. On June 25, 1984, he also acquired an interest in Gulf Coast Motors, Inc. Crutchfield On March 15, 1984, Joel Harold Crutchfield bought a Dodge Monaco for $1531 after Joe Smith told him it was in good mechanical condition. He signed a form contract that had "GULF COAST MOTORS" at the top with "Charlie Pace" and "Mark Turner," printed underneath. Respondent's Exhibit No. 1. Nobody else signed this undated form contract, which provided, among other things: Any payment late will include a late charge of $5.00 for every three days late . . . GULF COAST MOTORS has full rights to repossess any vehicle with a payment three days late. If any vehicle is repossessed the buyer has up to 10 days in which to pay the vehicle off in full and a $100.00 repossession charge to redeem the vehicle. Mr. Crutchfield also signed a form warranty disclaimer, stating "THIS USED MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY WARRANTY . . .". Respondent's Exhibit No. 2. Mark Turner and Glen Padgett witnessed his signature on the warranty disclaimer. Mr. Crutchfield understood that he was buying the car "as is." Under the agreement, Mr. Crutchfield made a downpayment of $250 and undertook bi-weekly payments of $60 to retire a balance of $1281. Joe Smith signed an undated receipt for $250 on which "GULF COAST MOTORS" was stamped. David J. Turner signed a similarly stamped receipt for $60 on March 31, 1984. Mark Turner's and David Turner's names were on front of the office building at the car lot. The night following the purchase, Mr. Crutchfield had to buy a new starter for the car. When he drove the car home, he discovered that the brakes, the brake lights and the horn did not work. Only three lug nuts held each tire to its wheel. About a month after he had the car, the front end dropped and the car was "so low it looked like it would hit the road"; the frame was broken. Eventually Mr. and Mrs. Crutchfield decided to give the car back because Joe Smith and Charlie Pace refused to fix the frame. They made their last payment on or about September 17, 1984. Mrs. Crutchfield left the car on the lot and walked off ignoring calls to come back. A couple of days later the car was gone. The Crutchfields never received any correspondence in connection with the car thereafter. Youmans Frances Gayle Youmans also purchased a car on March 15, 1984, and also made a down payment of $250.00. She also dealt with Joe Smith. For a sales price of $1495.00, which with the dealer handling charge of $25.00, tag and title transfer fees, came to $1636.00, Ms. Youmans acquired a 1974 Buick that had been driven 78,482 miles. She agreed to pay the balance of $1380.00 in $25.00 weekly installments. On the vehicle registration certificate "GULF OOAST MOTORS" is shown as the "SELLER, FLORIDA DEALER, OR OTHER PREVIOUS OWNER," and as the first lienholder. Joe Smith, C. E. Pace, David J. Turner, Mark Turner and Lisa Russo signed receipts for various weekly payments she made. The day she bought the car it backfired on a test drive. Mr. Smith told her that it was the carburetor and that he would get a mechanic to fix it. Ms. Youmans is not an automobile mechanic; she works as a maid. She signed an "as is" disclaimer, which she did not understand. On March 16, 1984, she spoke to Joe Smith about fixing the car. He promised her repeatedly that he would arrange for a mechanic to fix it and told her not to take it to anybody else. She left the car parked at her home for more than two months, making weekly payments the while, on the strength of these assurances. On March 16, 1984 Ms. Youmans made application for a temporary license tag. A form application for vehicle registration was partially completed on April 19, 1984. Petitioner's Exhibit No. 4. Ms. Youmans asked Joe Smith to arrange for the car to be picked up and taken to the car lot, because she was afraid to drive it. After she had made the last in an unbroken series of weekly payments, on June 15, 1984, the car was towed. The next day Joe Smith told her to continue the weekly payments so that she could have the car back when she paid the mechanic's bill. About a week later the car "ran," and about a week after that she appeared with $155.00, enough to pay for the mechanic, for towing ($50.00) and to bring payments (with late charges) current. Mark Turner refused the money, pounded his fist on a table, and told her to leave. Still later she noticed that the car was no longer on the lot. Allen On March 24, 1984, Donald Gene Allen purchased a 1973 Volkswagen from a salesman named Smith, making a down payment of $300.00 and agreeing to weekly payments of $35.00 to retire a balance of $2180.00. He signed a form contract that had "GULF COAST MOTORS" at the top with "Charlie Pace" and "Mark Turner" printed underneath. Respondent's Exhibit No. 4. Nobody else signed the form contract, which provided, among other things: Any payment late will include a late charge of $5.00 for every three days late . . . . GULF OOAST MOTORS has full rights to repossess any vehicle with a payment three days late. If any vehicle is repossessed the buyer has up to 10 days to pay the vehicle off in full and a $100.00 repossession charge to redeem the vehicle. Respondent's Exhibit No. 4. Mark Turner and C. E. Pace witnessed Mr. Allen's signature on a form warranty disclaimer, which stated, "THIS USED MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY WARRANTY . . ." Respondent's Exhibit No. 3. A week and a half after he had acquired the Volkswagen, the transmission failed and Mr. Allen called for the car to be towed back to the used car lot. He asked that the car be repaired and the car was taken to a Volkswagen mechanic's shop. This shop refused to release the car to Mr. Allen without payment of the repair bill. He was refused, when he asked that his down payment be returned. Mr. Allen dealt only with Charlie Pace and Joe Smith and never spoke to the Turners. Hayes Willie Hayes, Jr. bought a car from Gulf Coast Motors in 1982 or 1983 for about $1200.00. He fell behind in his bi- weekly payments once in a while, but always let somebody know when he would be unable to make a payment. In May of 1984, when he was $60.00 or $70.00 behind, he told Mr. Pace that he would bring payments current in a week's time. He showed up at the used car lot with all but $20.00 of what he had intended to bring, but was told that he had to pay everything he still owed on the car, a balance of $420.00. Mark Turner asked him for the key to the car when it became clear that he could not pay. Mr. Hayes refused, got into his car and started to leave. Mark Turner got into another car and blocked his egress while another driver pulled another car in front of Mr. Hayes, penning his car. Eventually a Highway Patrolman arrived, wrote Mr. Hayes a ticket for having backed into the car Mr. Turner had placed in his way, determined that Mr. Turner had no judicial process authorizing repossession, and sent Mr. Hayes on his way. Motley Burtis O. Motley bought a 1980 Ford Granada from Gulf Coast Motors on October 11, 1984. He dealt with a Jerry Murph who signed an odometer mileage statement reciting that the odometer "now reads 131,527 miles . . . [and that] the odometer reading . . . reflects the actual mileage." Petitioner's Exhibit No. 6. In fact, however, the odometer read 131,528, understating the mileage by 99,999 miles, a point on which Mr. Motley, a retired carpenter, was confused. During negotiations he commented to the salesman, "I see the low mileage." Cataracts impair Mr. Motley's vision. He did not read the odometer mileage statement or the other documents he signed when he paid $500.00 down, traded in his old car, and undertook to retire a balance of $3206.75 with monthly payments of $70.00. He realized he was buying the car "as is," however, and signed a disclaimer to that effect. Two or three days after the purchase, Mr. Motley began having repairs done, first on the brakes: the front brakes pulled to the left and the back brakes "went haywire." Grease seals were replaced at K-Mart. New shock absorbers were needed. Mr. Motley decided that he had had enough. On the telephone he told one of the Messrs. Turner that he was going to stop making payments and that he would "turn the car in." On November 24, 1984, somebody took the car. Mr. Motley later saw it on the Gulf Coast Motors lot, but there was never any communication as to its disposition after November 24, 1984. Pugh On July 7, 1984, a Saturday, Marshall Everett Pugh bought a 1972 Toyota from David Turner purporting to act as a salesman for Gulf Coast Motors. Most of the paperwork he signed in blank but he was aware of the import of the form warranty disclaimer he signed, and acknowledged at hearing that he purchased the car "as is," after David told him that the car "ran good." At the time of the purchase he was aware that the driver's door did not open and that the ignition key was prone to stick in a way that kept the starter operating even after the engine was running. On the 9th or 10th of July, after he had taken the car to mechanics to be looked at, Mr. Pugh learned that only one cylinder was functioning properly. On July 10, 1984, he took the car back to the used car lot and asked Mark Turner where David was. Mark pointed out that Pugh had bought the car "as is," ending his remarks on an obscene note that precipitated a tussle. The fight ended with David pulling Pugh off Mark by the hair. Pugh left without the car and never heard further from the Turners or Gulf Coast Motors about the car. He had given them an erroneous address at the time of purchase and left town shortly afterward. Castello Under her then (married) name of Graves, Cathy Sheree Castello bought a 1979 Cougar from a salesman named Bill on the Gulf Coast Motors lot. He told her it was a good car. She had effected a few repairs when, two weeks after the purchase, she was told that the car needed a new engine, because the one it had was "totally blown." The car would only go about 30 miles per hour. She, too, had signed an "as is" warranty disclaimer. Ms. Castello returned the car to the lot where it was offered for sale while she and the used car lot personnel tried to reach a settlement. Without notice to her, the car was sold and somebody forged her stepfather's signature in transferring title to the new buyer. Before the final hearing in this case, she had settled her claim against respondents amicably.
The Issue Initially the issue was, whether Respondent, Sunshine Auto Mart, discriminated against Petitioner, Dorothy Scott, on the basis of her disability, and, if so, what remedy should be ordered. However, at the beginning of the hearing, the parties agreed that the hearing would be limited to the question of whether Respondent met the definition of “employer” under the Florida Civil Rights Act.
Findings Of Fact Respondent is a used automobile dealership. John Connell is the sole proprietor of Respondent. Petitioner was hired by Respondent in 2007. Petitioner started working for Respondent as a secretary and later became Respondent’s general manager. She would work in different areas of the dealership, as needed, but she maintained a steady work schedule. Petitioner received notification that her employment was terminated on July 28, 2014. Petitioner was unable to provide competent details of when and how long each alleged employee worked for Respondent. Some of the alleged employees worked a few hours each week and could come and go as they wanted. At the final hearing, Respondent presented Employer’s Quarterly Federal Tax Returns for 2013 and 2014, and the Florida Department of Revenue Employer’s Quarterly Reports covering 2013 and 2014. Each report shows that Respondent employed fewer than 15 employees for each quarter covered by the report. These reports, supported by Mr. Connell and Ms. Riggs’ testimony, constitute competent substantial evidence that Respondent employed fewer than 15 full-time employees for each working day in the 52 calendar weeks in 2013, and in the 28 calendar weeks in 2014, the period preceding the alleged discrimination. Petitioner did not present any competent substantial evidence to counter or rebut this evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Petition. DONE AND ENTERED this 4 day of November, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 4 day of November, 2015.
The Issue The issue for consideration in this case is whether Petitioner should be licensed as an independent motor vehicle dealer in Florida.
Findings Of Fact By stipulation of fact, the parties agreed: Petitioner applied for a motor vehicle dealer's license for a dealership to be operated at 2401 Central Avenue in St. Petersburg, Florida. The application was denied by the Department because it appears the applicant has no experience in the motor vehicle business and, in fact, applied for the license to allow an individual by the name of Lloyd Blocker to operate and have continued involvement in the motor vehicle business. Petitioner was aware at the time of his application that Mr. Blocker had been denied a motor vehicle license in Florida in February 1994 and had been convicted of a felony in Alaska involving the unlawful rolling back of odometers in motor vehicles. In addition, Mr. Rinier was aware that the Department of Motor Vehicles would not allow Mr. Blocker to hold a license to deal in motor vehicles in Florida. Mr. Rinier and Mr. Blocker have an ongoing business dealing with the sale of motor vehicles. Mr. Rinier knows and knew at all times pertinent hereto that Mr. Blocker could not operate such a business on his own. The Department of Motor Vehicles contends that Mr. Blocker cannot operate or be involved in any facet of the motor vehicle business in any capacity. If Mr. Rinier were to provide written assurances that Mr. Blocker would not be involved in any way with a business operated under a license if issued, it would issue a license, assuming Mr. Rinier were otherwise qualified for licensure. Mr. Rinier is unwilling to provide that assurance in writing. However, Petitioner contends his sole desire is to make money from the operation of a dealership. If the license were issued, ownership of the business would be and remain in the Petitioner's name. He had already paid lease costs and all other costs relating to the business, and he will not operate it without Mr. Blocker's participation in some form. The present relationship with Mr. Blocker involves sale of the buildings where the dealership would operate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Highway Safety and Motor Vehicles enter a Final Order denying a motor vehicle dealer license to Petitioner, Harvey G. Rinier. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John L. Waller, Esquire John L. Waller, P.A. 467 Second Avenue, North _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997. St. Petersburg, Florida 33701 Michael J. Alderman, Esquire Gabrielle L. A. Taylor, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building Room B-439 Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by June C. McKinney, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Dismissal, a copy of which is attached, and incorporated by reference, in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Respondent, Rick Case Sunrise, LLC d/b/a Rick Case Kia, be granted a license to sell vehicles manufactured by Kia (KIA) at 1650 Sawgrass Corporate Parkway, Sunrise, (Broward County), Florida 33323, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed February 6, 2013 12:50 PM Division of Administrative Hearings DONE AND ORDERED this day of Febery 2013, in Tallahassee, Leon County, bil bo Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motorist Services thi Ue d f-Janauty. 03. is say ofa NOTICE OF XPPEAL: 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/jc Copies furnished: Andy Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard, South, Suite 202 Tallahassee, Florida 32312 Andy.bertron@nelsonmullins.com Robert E. Sickles, Esquire Hinshaw & Bulbertson, LLP 100 South Ashley Drive, Suite 500 Tampa, Florida 33602 Rsickle@hinshawlaw.com Colm Moran, Esquire Hogan Lovells US, LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, California 90067 Colm.moran@hoganlovells.com R. Craig Spickard, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 3203 cspickard@flb-law.com June C. McKinney Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
Findings Of Fact Petitioner Schooley Cadillac, Inc. is a dealer in Cadillac automobiles in West Palm Beach, Florida. The firm requires its salesmen to purchase a new Cadillac automobile each year. When a salesman decides to acquire the new automobile, an order is placed with the Cadillac Motor Car Division and delivery is made some eight to ten weeks thereafter. During the interim period, the salesman's used automobile is placed in petitioner's used car department and sold to a customer. State sales tax is collected by petitioner and remitted to respondent based on sales of the used cars. Title to the used car is transferred from the salesman to petitioner at the time it is resold. Although there is no contract or purchase agreement executed between the salesman and petitioner for the purchase of the new automobile, he is credited with the sale price of the used car on the books of the petitioner at the time the used car is sold. When the salesman's new car arrives, an invoice is prepared that reflects the amount credited to the salesman for the used car on the purchase price of the new car as a "previous trade." State sales tax is collected by petitioner and paid to the state on the price of the new automobile, less the amount credited for the used automobile. Petitioner handles a lesser number of transactions for General Motors retirees and a few winter residents using basically the same procedures involving purchases of new automobiles and prior sale of the individual's used car. In such cases, however, title to the used car is normally transferred to petitioner prior to its sale. (Testimony of Eichhorn) Respondent's tax examiner examined the books of petitioner in 1977 and determined that credit should not have been allowed for the price of the used automobiles in determining the amount of sales tax payable to the state because he viewed the amounts credited for the used automobiles as "down payments" rather than "trade-ins." Based upon 33 such transactions which took place between May 1, 1974 through April 30, 1977, a Notice of Proposed Assessment was prepared and sent to petitioner on August 2, 1977, in which delinquent sales tax in the amount of $9,814.44 was claimed, together with a penalty in the amount of $2,367.19, and interest through June 23, 1977, in the amount of $1,703.79, for a total assessment of $13,885.39. A prior Notice of Proposed Assessment in a somewhat larger amount had been scaled down after certain credits had been allowed to the petitioner. The 33 transactions in question involved 24 sales to petitioner's salesmen and the remainder to General Motors retirees or regular customers. As a result of the proposed assessment, petitioner filed its petition for an Administrative Hearing in the matter. At the hearing, petitioner conceded that tax was payable on three of the transactions in which used vehicles were not sold by the petitioner. These three transactions involved the purchase of new automobiles for the price of $7,500 and $5,200 respectively, and the purchase of a motorcycle for $375, thus making a total of $13,075 upon which petitioner acknowledges sales tax in the amount of 4 percent is due. Such tax amounts to $523, plus applicable interest and penalties thereon. (Testimony of Eichhorn, Elliot, Exhibits 1-2)
Recommendation That petitioner Schooley Cadillac, Inc. be held liable for sales tax under Chapter 212, Florida Statutes, in the amount of $523, plus an appropriate amount for penalty and interest thereon. Done and Entered this 7th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Robert W. Jensen and James Adams, Esquires 186 Southeast 13th Street Miami, Florida 33130 Edwin J. Stacker, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304
The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact In March of 1983, Ms. Yvonne LeBerg purchased a green 1972 Pontiac Catalina from respondent MPG Economy Motors (MPG), after a conversation with respondent Leland A. Taylor. She told him she wanted to give her daughter and her family a car, and that her son-in-law could fix any minor problems. Mr. Taylor told her that the 1972 Pontiac (the car) had a hole in the trunk from rust; and there was some talk of "oil in the bottom"; but he assured her that the car was in "good running condition." Ms. Cardinale Williams, a friend of Ms. LeBerg who overheard discussions between Mr. Taylor and Ms. LeBerg, remembers Mr. Taylor's presentation that the car was in good running condition. Ms. LeBerg decided to buy the car, made a deposit against the purchase price, and left with Ms. Williams. Wallace Carter, who is married to Ms. LeBerg's daughter Suzanne, picked the car up and closed the transaction on March 12, 1983. Neither he nor Ms. LeBerg drove the car beforehand, although he did start the engine and suggest a test drive. Mr. Taylor said he wanted to get home to supper. As far as the evidence shows, Mr. Carter was aware at the time that the rear view mirror had come unattached and needed regluing. At no time did Mr. Taylor or anybody else disclaim any warranty in writing or otherwise. Boy scouts were in the car on an outing and Mrs. Suzanne Carter was driving, when the car caught fire; smoke billowed and everyone escaped unharmed. The fire is thought to have been caused by some electrical problem. The headlights have not worked since, and the car has hardly been driven since. About three months later, the Carters asked Mr. Wayne Sturdivant a "service advisor" at the local Pontiac dealer, to make a visual inspection of the car and estimate the cost of repair. The exhaust system needed replacement. A power steering hose leaked fluid, as did the transmission, which required a new front pump seal. Valve cover gaskets needed replacement. In addition, the air conditioning compressor was out, and, of course, the headlights did not work. According to Mr. Sturdivant's uncontroverted testimony, only the power steering and exhaust problems were serious enough to affect safety. The record does not establish the reasonable cost of repairs necessary to put the car in good running condition. The Carters brought their problems with the car to Mr. Taylor'S attention. They also complained of poor gas mileage and cracks at the edge of the windowshield that Mr. Carter uncovered when he removed some chrome trim. At one time Mr. Taylor offered to take the car back on consignment, do some repairs, and make the Carters whole (except for registration fees) if it could be sold for $100.00 more than Ms. LeBerg paid for it, and if Ms. LeBerg would withdraw her complaint. Negotiations faltered, however, and were eventually broken off, with Mr. Taylor declining to effect any repairs or rescind the sale. THE IMPALA The day the car she then had threw a rod, Ms. Barbara J. Blinz Wilson left it at the MPG lot, with Mr. Taylor's permission. On May 24, 1983, she bought a 1963 Chevrolet Impala from MPG, after a friend had looked the car over for her, and after a test drive. The sale documents include a form warranty disclaimer signed by Ms. Wilson and her daughter, which states: AS IS THIS USED MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY WARRANTY, EITHER EXPRESSED OR IMPLIED. THE BUYER WILL BEAR THE ENTIRE EXPENSE OF REPAIRING OR CORRECTING ANY DEFECTS THAT MAY PRESENTLY EXIST OR THAT MAY OCCUR IN THE VEHICLE. THE DEALER (SELLER) SHALL NOT HAVE ANY RESPONSIBILITY FOR CONSEQUENTIAL DAMAGES. DAMAGES TO PROPERTY, DAMAGES FOR LOSS OF USE, LOSS OF TIME, LOSS OF PROFITS, OR INCOME OR ANY INCIDENTAL DAMAGES WITH RESPECT TO ANY DEFE [sic] OR MALFUNCTION OR UNFITNESS OR OTHER DEFICIENCY OF THIS VEHICLE. Petitioner's Exhibit No. 4. Ms. Wilson understood that she was buying the Chevrolet as is. Mr. Taylor did not know that such forms existed at the time he sold Ms. LeBerg the Pontiac. Three weeks after she purchased the car, Ms. Wilson spent $31 for a radiator repair, and a water hose sprung a leak the day before the hearing. She still used the car daily. Her principal complaint was that, until it was removed, the headliner tended to fall from the ceiling in swatches, obstructing her view.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 2nd day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 2nd day of November, 1983. COPIES FURNISHED: Leland A. Taylor 828 Michigan Avenue Pensacola, Florida 32505 William P. White, Jr. Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501
Conclusions This matter came on for determination by the Department upon submission of an Order Closing File by P. Michael Ruff, an Administrative Law Judge, of the Division of Administrative Hearings, 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. ORDERED that this case is CLOSED and no license will be issued to Flyscooter, LLC and Sunstate Powersports, LLC to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 825 Mason Avenue, Daytona Beach (Volusia County), Florida 32117. DONE AND ORDERED this 4, of June, 2009, in Tallahassee, Leon County, Florida. L A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division ofPiotor Vehicles this — day of June, 2009. 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. CAF/vlg Copies furnished: Siegfried Kientoff Sunstate Powersports, LLC 825 Mason Avenue Daytona Beach, Florida 32117 David Levison Mega Powersports Corp. 390 North Beach Street Daytona Beach, Florida 32114 Daniel Pak Flyscooters, Inc. 7307 Edgewater Drive, Building H Oakland, California 94621 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 P. Michael Ruff Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
Findings Of Fact Petitioner is a dealer in liquefied petroleum gas (LPG), duly licensed in Florida. Petitioner buys LPG in Florida and resells it to dealers who in turn sell most of it at retail, but use part of it as fuel for their trucks. During the period July 1, 1975, through February 28, 1977, neither petitioner nor any of its customers paid any tax on account of petitioner's sales of LPG, other than LPG used by its customers to propel trucks. Petitioner's customers kept records as to how much LPG was sold by them for home cooking or heating use by their customers, the ultimate consumers. Until the summer of 1977, petitioner's customers who used LPG as truck fuel kept records of how far the trucks so fueled were driven. Using the resulting mileage figure, they calculated the amount of LPG that had been used as truck fuel. Until the summer of 1977, petitioner collected from its customers a tax of eight cents ($.08) per gallon on LPG used as truck fuel. During the period from July 1, 1975, through February 28, 1977, none of petitioner's Florida customers held Florida dealer's licenses, except Gene Lewis Auto Brokers, which obtained a license as a special fuel dealer in August of 1976. Also in August of 1976, Gene Lewis Auto Brokers purchased 2,052 gallons of LPG from petitioner, on which no tax was paid. Thereafter, the same customer bought 41,011 gallons from petitioner in the period ending February, 1977, on which no tax was paid. Petitioner made tax returns monthly, using forms furnished by respondent. With respect to respondent's Form DR-115-F, styled "Special Fuel Sold . . . Within the State to Licensed Dealers Tax-Free," general instructions furnished to petitioner by respondent provided: To be used in support of claims for exemp- tion ... for sales ... to other licensed dealers. Signed resale certificates ... which bear the name and address of the pur- chaser and the number of his dealer's license are required to be retained in the seller's permanent file .... Petitioner's exhibit No. 2. (emphasis supplied) Monthly, petitioner listed on Form DR-115-F the amounts of LPG sold to its Florida customers, less amounts its Florida customers advised had been used to propel trucks. On another form furnished by respondent, Form DR-115-J, petitioner listed monthly, by county, the LPG used by its Florida customers to propel motor vehicles and on which petitioner had collected tax at the rate of eight cents ($.08) per gallon. At the time petitioner filed its monthly tax return, it forwarded to respondent the taxes it had collected from its Florida customers. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which appears as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's assessment be upheld with respect to petitioner's tax deficiency, except for the portion attributable to sales by petitioner to Gene Lewis Auto Brokers after August of 1976, being three thousand two hundred eighty and eighty-eight hundredths dollars ($3,280.88). That interest and penalty be adjusted accordingly. DONE and ENTERED this 8th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. John Radey, Esquire Holland & Knight Post Office Drawer 810 Tallahassee, Florida 32302 Mr. Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32304 APPENDIX Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, except that the evidence did not show that petitioner's customers used LPG for home heating or cooking, only that persons to whom petitioner's customers sold used the LPG in this fashion. Paragraph two of petitioner's proposed findings of fact has been adopted in substance. Paragraph three of petitioner's proposed findings of fact has been adopted in large part. The gist of the information supplied to petitioner by its dealers was that LPG not used by them would be resold to domestic users. Although respondent did not undertake to determine whether petitioner listed the same LPG as taxable and as tax-exempt on the same tax return, there is no reason to believe that petitioner did so. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, except that petitioner's tax returns were inaccurate as to its customers' status as dealers. The final three paragraphs of petitioner's proposed findings of fact accurately reflect evidence adduced at the hearing, but are not relevant to a decision of this controversy.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Jeff B. Clark, an Administrative Law Judge of the Division of Administrative Hearings, 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. Said Order Closing File was predicated upon the Respondent’s Notice of Voluntary Dismissal, filed on August 05, 2010. Accordingly, it is hereby ORDERED that the Franchise Agreement between Nissan Diesel America, Inc. and American Import Car Sales, Inc. d/b/a Jumbo Auto and Truck Plaza of Fort Pierce is terminated. Filed August 20, 2010 1:15 PM Division of Administrative Hearings. DONE AND ORDERED this J? = day of August, 2010, in Tallahassee, Leon County, Florida. CARL A. FORD, Direct6r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this_F2#hday of August, 2010. . . Ni , Dealer Administrator 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. CAF: vig Copies furnished: John W. Forehand, Esquire Kurkin Forehand Brandes LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 Matthew Porter Julian, Esquire Baker & Hostetler LLP 200 South Orange Avenue, Suite 2300 Orlando, Florida 32803 David R. Jarrett, Esquire Baker & Hostetler LLP 1000 Louisiana Avenue, Suite 2000 Houston, Texas 77002 Jeff B. Clark Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Stipulation to Dismiss with Prejudice along with an Order Closing File and Relinquishing Jurisdiction by Linzie F. Bogan an Administrative Law Judge of the Division of Administrative Hearings, copies of which are attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is DISMISSED. DONE AND ORDERED this aia day of November, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this Be ay of November, 2013. Nalini Vinayak, Dealer Kicense Administrator Filed November 26, 2013 3:54 PM Division of Administrative Hearings 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. Copies furnished: Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 Randall L. Oyler, Esqurie Barack Ferrazzano Kirschbaum & Nagelberg, LLP 200 West Madison Street, Suite 3900 Chicago, Illinois 60606 Linzie F. Bogan Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator acy. ae
