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 The issue in the case is whether an application for a motor vehicle dealer license filed by Lambretta International, LLC, and Retro Unlimited, Inc., should be approved.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the application for establishment of the motor vehicle dealer franchise at issue in this case. DONE AND ENTERED this 26th day of August, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 26th day of August, 2008. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Caroline Khurana Lambretta International, LLC 14339 Lake City Way Northeast Seattle, Washington 98125 Chris Densmore Scooter Escapes, LLC, d/b/a Scooter Escapes 1450 1st Avenue North St. Petersburg, Florida 33705 Edward G. Dreyer, III Retro Unlimited, Inc. 3200 Dr. Martin Luther King, Jr. Street North St. Petersburg, Florida 33704 Carl A. Ford, Director Division of Motor Vehicles Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue is whether Petitioner's establishment of North Tampa Chrysler Jeep Dodge, Inc. (North Tampa), as a successor motor vehicle dealer for Chrysler, Jeep and Dodge line-makes (vehicles) in Tampa, Florida, is exempt from the notice and protest requirements in Subsection 320.642(3), Florida Statutes (2009),1 pursuant to Subsection 320.642(5)(a).
Findings Of Fact Petitioner manufactures and sells Chrysler, Jeep and Dodge vehicles to authorized Chrysler, Jeep and Dodge dealers. Ulm is a party to Dealer Sales and Service Agreements with Petitioner for Chrysler, Jeep and Dodge vehicles. Ulm sells Chrysler, Jeep and Dodge vehicles at 2966 North Dale Mabry Highway, Tampa, Florida 33607. Ferman is a party to Dealer Sales and Service Agreements with Petitioner for Chrysler, Jeep and Dodge vehicles. Ferman sells Chrysler, Jeep and Dodge vehicles at 24314 State Road 54, Lutz, Florida 33559. It is undisputed that Petitioner has had four dealers in the Tampa metro market for a significant number of years. Petitioner's primary competitors also have had four or more dealers in the Tampa metro market. By appointing North Tampa as a successor dealer to Bob Wilson Dodge Chrysler Jeep (Wilson), Petitioner seeks to maintain the status quo of four Chrysler dealers in the Tampa metro market. In April 2008, Petitioner had four dealers in the Tampa metro market that each sold and serviced Chrysler, Jeep and Dodge vehicles. The four dealers were: Ulm, Ferman, Courtesy Chrysler Jeep Dodge, and Wilson. On April 25, 2008, Wilson filed a Chapter 11 petition in United States Bankruptcy Court in the Middle District of Florida (the Bankruptcy Court). At or about the same time, Wilson closed its doors and ceased selling and servicing Chrysler, Jeep and Dodge vehicles. The filing of Wilson’s bankruptcy petition precipitated an automatic stay under Section 362 of the Bankruptcy Code. The automatic stay prevented Petitioner from terminating Wilson’s franchise and dealer agreements (dealer agreements). But for Wilson’s bankruptcy filing, Petitioner would have sent Wilson a notice of termination when Wilson closed its doors and ceased dealership operations. Wilson’s cessation of business adversely impacted Petitioner. In relevant part, Petitioner lost sales and lacked a necessary fourth dealer to provide service to Chrysler, Jeep and Dodge customers in the Tampa metro market. Petitioner desired to reopen a dealership at or close to the former Wilson location as soon as possible to mitigate or eliminate the economic loss. During the automatic stay, Petitioner was legally precluded from unilaterally appointing a successor dealer to Wilson. Wilson still had valid dealer agreements for the Chrysler, Jeep and Dodge vehicles and, therefore, was still a dealer. During the automatic stay, Wilson attempted to sell its existing dealership assets, including the Chrysler, Jeep and Dodge dealer agreements. Any attempt by Petitioner to appoint a successor dealer or even negotiate with a successor dealer, would have undermined Wilson’s efforts to sell the dealerships and maximize the estate for the benefit of the creditors. A sale of the dealership required the consent of Wilson and Wilson’s largest creditor, Chrysler Financial. Petitioner did everything it could to accelerate a sale. However, Petitioner was not a party to the sale negotiations and had no ability to require or force Wilson to sell the dealership or its assets to any particular party or to do so within any particular time period. A preponderance of the evidence does not support a finding that Petitioner did anything to intentionally, or inadvertently, delay or manipulate the timing of a sale. On July 30, 2008, Petitioner filed a motion with the Bankruptcy Court to lift the automatic stay. The motion also sought the termination of Wilson’s dealer agreements. Petitioner filed the motion in the Bankruptcy Court in an attempt to hasten the sale negotiations. Petitioner also wanted to be able to terminate the dealer agreements as quickly as possible in the event that a sale was not consummated. The Bankruptcy Court did not initially grant Petitioner's motion. The court wanted to allow time for a sale of the dealership to proceed. During 2008 and early 2009, Wilson continued to negotiate with potential buyers for the dealership. On January 8, 2009, Wilson's motor vehicle dealer license expired. It became apparent to Petitioner that a sale of Wilson’s assets would be unlikely. Petitioner again asked the Bankruptcy Court to grant Petitioner's motion to lift the stay. On February 9, 2009, the Bankruptcy Court entered an order granting Petitioner's motion to lift the stay. However, the order did not terminate Wilson’s dealer agreements. On February 16, 2009, within a week of the entry of the order lifting the stay, Petitioner sent Wilson a notice of intent to terminate Wilson’s dealer agreements. Wilson received the notice of termination on February 23, 2009, and the termination became effective on March 10, 2009. A preponderance of evidence does not support a finding that Petitioner attempted to manipulate or delay the timing of the termination of Wilson’s dealer agreements. Petitioner began working on establishing a replacement dealership as soon as Wilson’s dealer agreements were terminated. Establishing a replacement dealership is a lengthy process that primarily involves finding a suitable dealer candidate, finding a suitable location and facility, and making sure that the candidate has the necessary capital to start and maintain the dealership. Petitioner talked to several potential candidates to replace the Wilson dealership, including Jerry Ulm, the principal of one of the complaining dealers in these cases. By letter dated June 24, 2009, Mr. Ulm advised Petitioner that he opposed the opening of a successor dealership for anyone else but wanted the successor dealership for himself should Petitioner decide to proceed. Petitioner determined that Petitioner would not be able to locate the successor dealership at the former Wilson facility. Petitioner considered several potential alternative locations for the successor dealership, including property offered by Ferman. Ferman had a vacant site on Fletcher Avenue in Tampa, Florida, which Ferman leased from a third party unrelated to this proceeding. Ferman offered to sublease the property to Petitioner. In a letter to Petitioner's real estate agent dated July 17, 2009, Ferman stated Ferman's understanding that Petitioner intended to use the property to establish a Chrysler, Jeep and Dodge dealership. Petitioner ultimately decided to locate the dealership at 10909 North Florida Avenue in Tampa, Florida. It is undisputed that this location is less than two miles from the former Wilson location. Before establishing the successor dealership, however, Petitioner wrote a letter to the Department on February 5, 2010 (the letter). The letter requested the Department to confirm that the establishment of the successor dealership would be exempt under Subsection 320.642(5)(a)1. from the notice and protest requirements in Subsection 320.642(3). The letter explained that Wilson had filed bankruptcy and ceased operations and that the bankruptcy had prevented Petitioner from terminating Wilson and appointing a successor dealership. The letter also provided the relevant dates of the bankruptcy, the lifting of the stay, and the termination of Wilson dealer agreements and advised the Department of Petitioner's intent to locate the successor dealership within two miles of Wilson’s former location. The letter asked the Department to confirm that the establishment of a successor dealership would be exempt if it was established within one year of March 10, 2009, when Petitioner terminated the Wilson dealer agreements. By separate e-mails dated February 9 and 12, 2010, the Department twice confirmed that it had consulted with counsel and determined that the establishment of a successor dealership to Wilson in the manner outlined by Petitioner would be exempt. Petitioner relied on this confirmation by the Department before proceeding with the appointment of a successor dealership. On February 24, 2010, Petitioner sent a second letter to the Department, stating Petitioner's intention to appoint North Tampa as the replacement and successor dealer for Wilson (the second letter). In the second letter, Petitioner again asserted its understanding that the establishment of North Tampa was exempt from the relevant statutory requirements for notice and protest. On February 24, 2010, Petitioner also submitted to the Department an application for a motor vehicle dealer license for North Tampa. On March 3, 2010, the Department issued a license to North Tampa for the Chrysler, Jeep and Dodge vehicles at 10909 North Florida Avenue in Tampa, Florida. On March 7, 2010, North Tampa opened for business. North Tampa has operated successfully and continuously and employs approximately 30 individuals at the site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that the establishment of North Tampa as a successor motor vehicle dealer is exempt from the notice and protest requirements in Subsection 320.642(3) pursuant to Subsection 320.642(5)(a). DONE AND ENTERED this 11th day of October, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 11th day of October, 2010.
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
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
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Errol H. Powell an Administrative Law Judge of the Division of Administrative Hearings, and the Petitioner’s Joint Notice of Dismissal and Withdrawal of Notice of Termination, 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 alo day of June, 2014, in Tallahassee, Leon County, Florida. Filed in the official records of the Division of Motorist Services this A \g day of June, Bureau of Issuance Oversight 2014. Division of Motorist Services Department of Highway Safety and Motor Vehicles . 4 fe. vars sas Malin: Vrragele Neil Kirkman Building, Room A338 Nalini Vinayak, Dealer License Administrator Tallahassee, Florida 32399 Copies furnished to: Filed June 27, 2014 10:27 AM Division of Administrative Hearings Nalini Vinayak Dealer License Section R. Craig Spickard Kurkin Brandes LLP 105 West 5th Avenue Tallahassee, Florida 32303 cspickard@kb-attorneys.com John J. Sullivan Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 John.sullivan@hoganlovells.com J. Andrew Bertron, Esquire Nelson, Mullins, Riley and Scarborough 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Andy.bertron@nelsonmullins.com Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 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.
