The Issue The issue is whether Respondent violated Section 320.27, Florida Statutes, and if so, 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-29558. Petitioner issued the license based upon an application signed by Brenda L. Johnson, as President. Respondent's address of record is 3707 N. Main Street, Jacksonville, Florida 32206. On or about August 30, 2001, two of Petitioner's compliance examiners conducted an initial records inspection of Respondent's dealership. The purpose of the initial inspection was to determine whether the dealership was complying with statutory and rule requirements. Because the initial inspection was of an educational nature, it gave the compliance examiners an opportunity to provide Respondent with guidance in areas that needed improvement. During the August 30, 2001, inspection, the compliance examiners found violations of Sections 319.23(6), 320.131(7), 320.27(6), 320.27(7), 320.27(9)(b)16, and 320.27(9)(b)17, Florida Statutes. The compliance examiners also found violations of Rule 15C-1.004(3), Florida Administrative Code. Specifically, the August 30, 2001, inspection, included but was not limited to the following violations: (a) titles on vehicles not properly filled out; (b) buyer's guides not posted; (c) no titles to prove ownership on vehicles; (d) no proof of purchase for one vehicle; (d) titles not transferred within 30 days of sale; and (e) temporary tag log not properly filled out. The compliance examiners discussed the above-referenced violations with Respondent's general manager, Steve Landers, advising him that Petitioner would conduct a follow-up inspection within 60 days. The inspectors also advised Respondent's president, Barbara Johnson, about the violations via telephone. On or about October 10, 2001, Petitioner's compliance examiners conducted the 60-day follow-up inspection of Respondent's records. During this inspection, Respondent did not provide the examiners with a title or other proof of ownership for a 1991 Lincoln, Vehicle Identification Number (VIN) 1LNCM82W0MY78. The Lincoln was parked in an area where other vehicles were displayed for sale. There is no credible evidence that the Lincoln was Mr. Lander's personal vehicle. The October 10, 2001, inspection also revealed that Respondent had issued a total of 50 temporary tags. However, there were no records to verify the sale of the vehicles listed in the temporary tag log. During the October 10, 2001, inspection, the compliance examiners requested Mr. Landers to take copies of all of Respondent's records to Petitioner's office in Jacksonville, Florida, for a continuation of the follow-up inspection. The examiners also made a request for Mrs. Johnson to accompany Mr. Landers to the Jacksonville office. On or about October 25, 2001, Petitioner's compliance examiners conducted the continuation of the 60-day follow-up inspection of Respondent's record at the Jacksonville office. During the inspection, the examiners reviewed a total of 30 motor vehicle records, finding the following violations: (a) no proof of purchase for 30 vehicles; (b) no documentation indicating that Respondent had applied for titles for 20 vehicles; (c) no copy of registration for tag and title issuance documentation on 26 vehicles; and (d) no documentation indicating the date sold and odometer disclosure for 27 vehicles. On or about August 21, 2002, Petitioner's compliance examiners conducted another follow-up records inspection on Respondent's premises. At that time, Respondent did not have a title or other proof of ownership for a blue Pontiac Grand Am, VIN 1G2NE5432NM052548, or a red Dodge Shadow, VIN 1B3XP24D6PN566374, both of which were displayed for sale. There is no persuasive evidence that Respondent ever had the required proof of ownership for these vehicles. On August 21, 2002, Respondent's records indicated that it had sold three vehicles: (a) a 1985 Ford, VIN 1CLEG25K047; (b) a 1994 Chevrolet, VIN 2C1MR2464R6749435; and (c) a 1989 Buick, VIN 1G4NJ14D1kM026233. Respondent's records relating to the purchase and sale of these vehicles were incomplete. For instance, there was no proof of purchase/sale for two of the vehicles. Additionally, Respondent did not have records of the odometer disclosure at the time of purchase or sale for any of the three vehicles. Finally, Respondent had issued more than two temporary tags for one vehicle. While the examiners were conducting the August 21, 2002, inspection, Respondent had six vehicles displayed for sale. None of the vehicles had buyer's guides posted in their windows. The examiners reviewed Respondent's temporary tag records on August 21, 2002. They found that several such records lacked required signatures and VINs. On or about October 11, 2002, Petitioner's compliance examiners conducted a third follow-up records inspection on Respondent's premises. At that time, Respondent did not have title or any other proof of ownership for the following: (a) a 1989 Plymouth, VIN 1P3BA56J8KF504260; (b) a 1992 Toyota, VIN JT2EL46B8N0@@8549; and a 1988 Toyota, VIN 1NYAE82G4JZZ536776. Additionally, the 1989 Plymouth and the 1992 Toyota did not have a buyer's guide properly posted. The review of Respondent's sales records on October 11, 2002, revealed that Respondent had sold a 1993 Ford, VIN 1FAPP14JPW130409. However, Respondent did not have proof of purchase or an odometer disclosure statement for this vehicle. On October 11, 2002, Respondent's temporary tag records indicated that it had issued three temporary tags to L. Smith for the 1993 Ford. Respondent issued these tags on June 26, July 26, and August 24, 2002. The October 11, 2002, inspection revealed that Respondent sold the 1993 Ford on June 26, 2002, and applied for the title on September 5, 2002. Thus, Respondent failed to file the application for certificate of title by July 26, 2002, or within 30 days of June 26, 2002. At the conclusion of every inspection referenced above, Petitioner's compliance examiners reviewed the deficiencies they found with Mr. Landers. They discussed the statutes and rules that Respondent had violated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner issue a final order revoking Respondent's motor vehicle dealer's license. DONE AND ENTERED this 14th day of August, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 14th day of August, 2003. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Kenneth Steven Landers Officer/Director 433 Safer Lane Jacksonville, Florida 32211 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0600
Conclusions This matter came before the Department for entry of a Final Order pursuant to an order closing the file of the Division of Administrative Hearings. The record reflects that the parties have settled their dispute and entered into a Settlement Stipulation, which Settlement Stipulation is hereby adopted by reference. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: 1. Respondent has admitted the allegations of the administrative complaint in this matter. 2. Respondent has agreed to pay and has paid a civil fine of $2,000.00 by certified cashier’s check, receipt of which is acknowledged by the Department. 3. Each party will bear its own costs and attorney fees. 4. In order to prevent similar violations occurring in the future, Respondent shall abide by the following in operating its dealership: Respondent shall refrain from advertisements utilizing descriptions for vehicle condition such as mint condition, flawless, perfect and any other statements that may be deceptive and unfair if it is likely to mislead a consumer who is acting reasonably under the circumstances. Failure to abide by these procedures will constitute grounds for suspending or revoking Respondent’s license or imposing 4... fine. DONE AND ORDERED this YA day of July, 2009, in Tallahassee, Leon County, Florida. ) L A. FORD, Dire Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division 9% Motor Vehicles this £27 day of July, 2009. Copies furnished: Michael J. Alderman, Esquire Senior Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 Craig Hallman Executive Auto Leasing of South Florida, Inc. 2912 South Ocean Bivd. Highland Beach, Florida 33431 Errol H. Powell _Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Diane Buck Regional Administrator, DMV Region IX William Camper Hearing Officer Division of Motor Vehicles Billy Rankin Chief, Bureau of Field Operations Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
Findings Of Fact DOT Motor Carrier Compliance Officer Raul Vargas, Jr., stopped a commercial vehicle traveling on Interstate Highway 95 (S.R. 9), for a safety inspection on February 19, 1991. The vehicle was operated by William Henry Golden. Officer Vargas had Mr. Golden drive the truck off the interstate highway so that it could be weighed safely. There was no certified weight station within five miles of where he stopped Mr. Golden's vehicle, so Officer Vargas used portable scales that had last been calibrated January 17, 1991, 32 days preceding this event. The frequency for calibration of these scales is at six-month intervals, so there was great probability that these scales were accurate on February 19, 1991. Officer Vargas weighed the steering, drive, and rear axles of the vehicle, which resulted in a total weight of 85,800 pounds. Either the vehicle registration or the ICC authorization card ("bingo card") was made out to "Brisk Transportation Inc." The I.R.P. registration permitted only a gross vehicle weight of 80,000 pounds. Officer Vargas issued Load Report and Field Receipt No. 44747J to Brisk Transportation Inc., assessing a penalty of $290.00 for 5,800 pounds over the registered gross vehicle weight. Mr. Golden paid the $290 penalty personally and the vehicle was released to him as operator. Upon the testimony of Officer Vargas and Lt. Chuck Snellson, Officer Vargas' supervisor who reviewed the incident, and in consideration of these officers' education, training, and experience, it is found that Officer Vargas followed the proper and standard departmental procedure in weighing the vehicle and levying the $290.00 penalty. Nancy Golden, William Golden's wife, testified that her husband had a contract with Brisk Transportation to transport the product in the vehicle in question on February 19, 1991. She testified further that Mr. Golden was paid based on the product he was carrying at any given time and that there was no relationship between the weight of the product and the pay for transporting it. Nancy Golden was not present at any time when the product was being loaded, unloaded, transported, or weighed. Consequently, her assertion that Mr. Golden's vehicle actually weighed less than the weight registered by Petitioner's portable scale is not credible or persuasive. The several exhibits admitted in evidence in support of Mrs. Golden's assertion are not, in fact, probative of it. 1/ Mrs. Golden's unrefuted testimony that she and Mr. Golden owned the vehicle in question on February 19, 1991 and have since sold it is accepted as credible. There is no dispute between the parties that Mr. Golden, individually, paid the penalty and no suggestion by either party that the penalty was paid by Brisk Transportation Inc., a corporation. Even though Officer Vargas cited Brisk Transportation Inc. on the Load Report and Field Receipt, Mr. Golden (truck owner and operator) actually paid the fine to DOT. This entire administrative proceeding originated upon Mr. Golden's petition, and he is the appropriate party in interest here to whom a refund would be owed if the penalty were unlawful.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the penalty of $290.00 was correctly assessed Brisk Transportation Inc./William H. Golden under provisions of Section 316.545 F.S. DONE and ENTERED this 28th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 28th day of October, 1990.
The Issue Petitioner seeks to have the title to a specific motor vehicle cancelled and reissued to himself. The title at issue is currently in the name of John W. Klingerman. The central issue before the Hearing Officer is whether the title at issue was "improperly issued" by the Department so as to require cancellation of the certificate of title pursuant to Section 319.25(1), Florida Statutes. It was clear from the nature of the relief sought by the Petitioner that the disposition of this case might adversely affect the substantial interests of John W. Klingerman, the person to whom the disputed certificate of title is presently issued. Accordingly, an order was issued requiring that Mr. Klingerman be notified of the pendency of this case and of his right to file a petition to intervene in this case. Mr. Klingerman was so notified more than two months prior to the final hearing in this case. Mr. Klingerman did not seek to participate in this case. The only witness at the hearing was the Petitioner. Joint Exhibits 1 and 2 were received in evidence by stipulation of the parties. Petitioner's Exhibits 5 and 10 were received in evidence. Petitioner's Exhibit 9 was received with the caveat that it might later be disregarded by the Hearing Officer if, upon further consideration of the issues, the Hearing Officer determined it was not relevant. The Hearing Officer reserved ruling on the admission into evidence of Petitioner's Exhibits 8 and 12. Petitioner's Exhibits 1, 2, 3, 4, 6, 7 and 13 were rejected, but Petitioner was permitted to proffer them for inclusion in the record as rejected exhibits. Petitioner's Exhibit 11 was withdrawn by Petitioner. Respondent's Exhibit 1 was received in evidence. Rulings on Petitioner's Exhibits 8, 9 and 12 Upon consideration of all of the legal issues in this case, as set forth in the Conclusions of Law hereinafter, it is clear that Petitioner's Exhibits 8 and 12 are irrelevant to the disposition of the issues in this case. Accordingly, the objections to those two exhibits are sustained and both exhibits will be treated as rejected exhibits proffered for inclusion in the record. Upon further consideration, it is also clear that Petitioner's Exhibit 9 is irrelevant to the disposition of the issues in this case. Accordingly, even though Exhibit 9 has been received in evidence, no findings of fact have been based on that exhibit.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony presented at the hearing, I make the following findings of fact: During November of 1986, Chuck's Whiskey Creek Service embarked upon the process of enforcing a mechanic's lien on Petitioner's 1963 Ford Stationwagon, vehicle identification number 3T24F155323 (hereinafter referred to as "Petitioner's vehicle.") The owner of Chuck's Whiskey Creek Service arranged for the paperwork regarding the mechanic's lien to be handled by an agent, Title Clearing Service. Title Clearing Service is operated by John Boesch and Carol Boesch. On November 21, 1986, John Boesch mailed a document titled Notice of Claim of Lien And Proposed Sale of Vehicle to Petitioner at two different addresses. The documents were sent via certified mail. Both of the documents were returned to John Boesch because they were not delivered to the Petitioner. The documents mailed on November 21, 1986, contain all of the information itemized at Section 713.585(1)(a) through (i), Florida Statutes. On December 17, 1986, a notice of sale was published in the Fort Myers News-Press, a newspaper circulated in Lee County, Florida. The notice published in the newspaper read, in its entirety, as follows: LEGAL NOTICE OF SALE Chuck's Whiskey Creek Service, 5371 McGreagor Blvd., Fort Myers, Florida 33907 will hold a private sale on the following vehicle to satisfy lien pursuant to Chapter 713:585 of Florida Statue (sic) on January 5, 1987, at 8 a.m. 1963 Ford SW VIN #3T24F155323 Amount of Lien $2,027.95 (813) 549-0631 Dec. 17 No. 5247 Thereafter, on January 5, 1987, a private sale was conducted at which time John W. Klingerman purchased Petitioner's vehicle from Chuck's Whiskey Creek Service for $200.00. On January 13, 1987, John W. Klingerman applied to the Respondent for issuance of a certificate of title in his name, based on his purchase at the January 5, 1987, sale. On January 30, 1987, the Respondent issued a certificate of title to Petitioner's vehicle described above to John W. Klingerman of 1824 Coronado Road, Ft. Myers, Florida 323901-7008. Title Number 43916166 issued by the Respondent now shows John W. Klingerman as the owner of the 1963 Ford stationwagon bearing vehicle identification number 3T24F155323. The issuance of the certificate of title to John W. Klingerman was in reliance upon the application for certificate of title filed by John W. Klingerman and various supporting documents. The supporting documents included a copy of the certificate of compliance and the report of sale certified by the clerk of the court. Other supporting documents certified by the clerk of the court included copies of the Affidavit of Publication, the Notice Of Claim Of Lien And Proposed Sale of Vehicle, the vehicle repair order, and envelopes reflecting efforts to mail notices to the Petitioner. The Petitioner's vehicle was previously titled in the state of South Carolina.
Recommendation Based upon all of the foregoing, it is recommended that the Department of Highway Safety and Motor Vehicles issue a final order in this case cancelling certificate of title number 43916166 issued to John W. Klingerman and that the Department thereafter notify John W. Klingerman of the cancellation of the certificate as provided in Section 319.25(1), Florida Statutes. DONE and ENTERED this 22nd day of October, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2613 The following are my specific rulings on each of the proposed findings of fact submitted by the parties. The paragraph numbers below correspond to the paragraph numbers of the parties' proposed findings. Rulings on Petitioners Proposed Findings: Paragraphs 1 and 2: Accepted in substance. Paragraph 3: Accepted in substance with exception of vehicle identification number, which is incomplete. Paragraphs 4 and 5: Rejected as constituting argument or conclusions of law, rather than findings of fact. Paragraph 6: First sentence rejected as constituting argument or conclusions of law, rather than findings of fact. Second sentence is rejected as contrary to the greater weight of the evidence. Paragraph 7: First sentence rejected as constituting argument or conclusions of law, rather than findings of fact. Second sentence is accepted in substance, i.e., that publication of the notice was less than 20 days prior to scheduled sale and the newspaper publication contained insufficient information. Paragraph 8: First two sentences are rejected as constituting argument or conclusions of law, rather than findings of fact. Last sentence is rejected as irrelevant and subordinate details. Paragraph 9: First two sentences are rejected as constituting argument or conclusions of law, rather than findings of fact. Last two sentences are rejected as contrary to the greater weight of the evidence. Paragraph 10: Entire paragraph rejected as constituting irrelevant and subordinate details. Paragraph 11: Entire paragraph rejected as primarily constituting argument or conclusions of law rather than findings of fact. To the limited extent this paragraph contains factual matter, it is rejected as irrelevant and subordinate. Rulings on Respondent's Proposed Findings: Paragraph 1: Accepted. Paragraph 2: Accepted with exception of proposed purchase date. Greater weight of the evidence shows purchase date as January 5, 1987. Paragraph 3: Accepted in substance, but with most details omitted as irrelevant or subordinate. Paragraph 4: Rejected as constituting irrelevant and subordinate details. Paragraph 5: Accepted. Paragraphs 6 and 7: Rejected as constituting irrelevant and subordinate details. Paragraph 8: First sentence rejected as not fully consistent with the greater weight of the evidence. Second sentence rejected as argument or conclusions of law, rather than findings of fact. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Department of Highway and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Mr. Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504
