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.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Suzanne Van Wyk, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Parties’ Settlement Stipulation and Motion to Relinquish Jurisdiction, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed June 20, 2013 10:33 AM Division of Administrative Hearings DONE AND ORDERED this ee) day of June, 2013, in Tallahassee, Leon County, Florida. MELawenbaak. Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this ad. day of June, 2013. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jde Copies furnished: Lynette Whitehurst, Esquire Blanchard, Merriam, Adel and Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 lwhitehurst@bmaklaw.com eroreerrre rarer ee seiseG ; ASYS } Michael J. Alderman, Esquire Department of Highway Safety 2900 Apalachee Parkway, MS61 Tallahassee, Florida 32399 Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF MOTORIST SERVICES, Petitioner, vs. Case No. 13-0723 TANOS AUTO SALES, INC., Respondent. ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the joint Settlement Stipulation and Motion to Relinquish Jurisdiction, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 21, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 18th day of June, 2013, in Tallahassee, Leon County, Florida. Un Wit SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 Dock A. Blanchard, Esquire Blanchard, Merriam, Adel and Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 Lynette Whitehurst, Esquire Blanchard, Merriam, Adel and Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 mikealderman@flhsmv.gov STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, Case No.: 13-0723 v. TANOS AUTO SALES, INC., Respondent. / SETTLEMENT STIPULATION AND MOTION TO RELINQUISH JURISDICTION Petitioner, Department of Highway Safety and Motor Vehicles, and Respondent, Tanos Auto Sales, Inc., stipulate and agree to a settlement of this matter and move for relinquishment of jurisdiction for the purpose of entering a Final Order of the Department incorporating this Settlement Stipulation in the above-styled matter, as follows: 1. Petitioner agrees to dismiss the Administrative Complaint with prejudice. 2. Respondent agrees to a non-renewal of his motor vehicle dealer license for the period of May 1, 2013 through May 31, 2013. 3. Respondent agrees to pay an administrative fine of one thousand dollars ($1,000.00), within 30 days of the date of the Final Order. 4. If Respondent pays the amount specified in paragraph three above within the specified time, the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay the amount specified in paragraph three above on or before the date provided in the Final Order, on the day following the payment date specified, Respondent’s motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. 5. If after suspension for failure to pay the fine, as provided for in paragraph four, Respondent pays the amount specified in paragraph three above within 30 days following the date of suspension, its motor vehicle dealer license will immediately be reinstated without further penalties or sanctions. However, if Respondent fails to pay the amount due by the 30" day following the date of suspension, on the 31" day following the date of suspension Respondent’s motor vehicle dealer license shall be revoked by the Department without further notice. 6. If the Department suspends or revokes Respondent’s motor vehicle dealer license for non-payment as specified in paragraphs four and five above, said suspension or revocation shall be without recourse to the Respondent and Respondent hereby expressly waives any right to appeal or otherwise contest the suspension and revocation. 7. It is expressly understood that this Settlement Stipulation has no force and effect until the Department enters a Final Order adopting same. 8. Respondent and the Department fully understand that this Settlement Stipulation, and the subsequent Final Order incorporating same, will not in any way preclude additional proceedings by the Department against Respondent for acts or omissions not specifically detailed in the Administrative Complaint filed in this matter. 9. Respondent and the Department expressly waive all further procedural steps and Respondent expressly waives all rights to seek judicial review of or otherwise challenge or contest the validity of this Settlement Stipulation and the Final Order of the Department. 10. Respondent and the Department each waives the right to seek any attorney’s fees or costs from the other party in connection with this administrative proceeding. WHEREFORE, the parties move the Administrative Law Judge for the entry of an order returning jurisdiction of this matter to the Department. de Signed this day of , 2013 Signed this ‘7 day of _~Swt@ __, 2013. Mich’ i Deputy General Counsel Florida Bar No. 0242357 Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida, 32399 Attorney for Petitioner Ismail Osman, President Tanos Auto Sales, Inc. ~ : Signed this \-] day of (ane _, 2013. - am te Lynetté Whitehurst, Esquire Florida Bar No. 092145 Blanchard, Merriam, Adel & Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 Attorney for Respondent oO
The Issue Whether General Motors' decision not to renew its franchise agreement with Gallman Pontiac was "unfair" as the term is defined by Section 320.641(3), Florida statutes.
Findings Of Fact Background On or about October 28, 1988, (general Motors Corporation, Pontiac Division (General Motors) notified it franchisee, Bill Gallman Pontiac, GMC Truck, Inc. (Gallman Pontiac), a licensed motor vehicle dealer in the State of Florida, of its election not to renew the franchise agreement, effective ninety days from the date of the delivery of the notice of its decision. Because the franchise agreement was scheduled to expire on November 20, 1988, Bill Gallman would have the option to void the nonrenewal due to General Motor's failure to notify the motor vehicle dealer ninety days in advance of the proposed nonrenewal. To avoid this result and to comply with the franchise agreement, General Motors informed the dealer in the same notification that the current agreement was being extended for the same ninety day period in which the dealer had been given notice of the proposed nonrenewal. General Motors' extension of the term of the franchise agreement was a unilateral proposed novation that was accepted by Gallman Pontiac when he relied upon the modification and continued to do business under the novation. Gallman Pontiac's acceptance of the novation is clearly demonstrated by the timing of the verified complaint in this proceeding, which was filed on January 12, 1989. The specific reason stated by General Motors for its decision not to renew its franchise agreement beyond the ninety-day period was that Gallman Pontiac failed to fulfill its minimum sales performance responsibilities pursuant to its contractual obligations as set forth in the Dealer Sales and Service Agreement. Gallman Pontiac subsequently filed a verified complaint, pursuant to Section 320.641, Florida Statutes, to contest the proposed nonrenewal of the franchise agreement. The complaint alleges that the proposed nonrenewal is unfair and that the grounds asserted for the nonrenewal were factually untrue and/or legally insufficient for the intended purpose. The Mathematical Formula for Sales Effectiveness The manufacturer's primary purpose for entering into a franchise agreement with a dealer is to have its automobiles sold. To determine whether a dealer is meeting its responsibilities in this regard, the franchise agreement contains a mathematical formula which is used to evaluate the sales performance of all dealers who sell Pontiacs. Pursuant to the formula, which is expressed in the agreement and tide annual sales performance evaluation form, a dealer's sales ratio and registration ratio must be calculated. A dealer's sales ratio is determined by dividing the dealer's actual unit sales of new motor vehicles, wherever registered, by industry new unit registrations in the Dealer's Area of Prime Responsibility. A dealer's registration ratio is determined by dividing new motor vehicle unit registrations by industry new unit registrations in the Dealer's Area of Prime Responsibility. After these ratios are recorded, the dealer's sales and registration ratios are compared to zone and national registration ratio levels to determine sales and registration effectiveness. If the individual dealer's sales and registration performances reach a comparative level of 85 percent effectiveness to the zone and national levels, the dealer's performance is considered effective by General Motors. When the comparisons were made in this case, the dealer's sales effectiveness was 53.6 percent in 1987 and 68.5 percent in 1988. Registration effectiveness was 56.5 percent in 1987 and 74.1 percent in 1988. These levels of performance do not meet the minimum levels required by the franchise agreement. Other Considerations Under the Agreement In addition to the mathematical formula, the franchise agreement states that General Motors will consider other relevant factors in its sales evaluation, including the following factors: the trend over a reasonable period of time of dealer's sales performance; the manner in which dealer has conducted the sales operations, including advertising, sales promotion and treatment of customers; sales to fleet customers if they have affected registrations; the manner in which dealer has submitted orders for new motor vehicles to the Pontiac Division; the availability of new motor vehicles to dealer; and significant local conditions that may have directly affected dealer's performance. If the mathematical formulas regarding sales and registration effectiveness set forth in the franchise agreement were the sole measure used to determine Gallman Pontiac's sales performance through January 1989, it is clear that the dealer was not meeting its contractual obligations to General Motors in this area of responsibility. However, under the terms of the agreement, General Motors must look to other relevant factors that may have directly affected dealer's performance before a final determination can be made regarding an individual dealer's sales effectiveness. Contrary to the terms of the agreement, the annual evaluation forms show that Gallman Pontiac's performance was evaluated on retail sales only. The other relevant factors in the franchise agreement were not reviewed before the decision not to renew the franchise agreement was made. Other Relative Factors in the Agreement Which Should Have Been Considered in the Dealers Evaluation When the trend of the Gallman Pontiac's sales performance is reviewed, the evidence shows that Gallman Pontiac's sales performance over the life of the franchise agreement has improved relative to market growth by a small percentage (7.51%). This slight upward trend does not demonstrate an effective performance as the sales were below an acceptable standard before the increase in sales, and the improvement barely exceeded the local market growth. The time period over which the trend evaluation occurred is reasonable in this case because both parties agreed to a two-year term in the franchise agreement, which was subject to an overall evaluation prior to a renewal of the agreement. Although there was opinion testimony from a former sales manager from the dealership that Gaillman Pontiac did not order sufficient quantities and mix of vehicles, and imprudently focused the advertising towards the limited, younger group of buyers in Naples, this testimony was not found to be credible by the Hearing Officer. All of the other evidence presented by both sides regarding the manner in which the dealer conducted sales operations demonstrates that Gallman Pontiac met or exceeded his contractual obligations in this area of responsibility. Sales to fleet customers did not affect registrations in 1988. The dealer chose not to compete in the fleet market because the later resale of these vehicles interferes with the sale of new vehicles at this dealership. The manner in which the dealer submitted orders to the Pontiac Division was not criticized by General Motors. The dealer's procedures were continuously reviewed and evaluated through the Dealer Assistance Program. There was no showing that the dealer's ordering procedures directly affected its sales performance. The allocation procedures were applied to Gallman Pontiac in the same manner they were applied to other dealers. The evidence did not show that imprudent selections were made by the dealer in the ordering process, nor was it sufficiently established that manufacturer delays or the unavailability of certain products interfered with the dealer's sales in Naples. A significant local condition that may have directly affected the dealer's sales performance was the lack of receptivity in the Naples market area for linemakes in the class of automobiles offered by Pontiac. Actual sales performance data for all new car registrations in the area show that the Naples market prefers to purchase automobiles from the high group of automobiles such as Cadillac, Lincoln, BMW, Mercedes Benz, and Porsche. Pontiac does not have a linemake designed to compete in this market segment. Application of the Other Relevant Factors To The Decision Not To Renew Because the franchise agreement and the annual sales evaluation form have not made provisions for any adjustments to the original statistical formula based upon the additional considerations mentioned in paragraphs 9-13, these factors are to be considered independently from the initial mathematical calculation. The purpose of the review of these factors is to determine if the statistical analysis is a reliable indicator of the sales performance of the dealer who is being evaluated before General Motors makes its final decision regarding termination. There has been no showing that General Motors ever used the additional considerations for any other purpose in its course of dealings with other dealers in the past or that any other interpretation has been given to these factors. In this case, when the additional relevant factors are reviewed in addition to the ineffective sales and registration performance statistics, the mathematical formula continues to be a reliable indicator that the sales performance at the Gallman Pontiac dealership does not meet required standards. The additional considerations set forth in the franchise agreement which are relevant to this case, do not seriously undermine the fairness of the application of the initial mathematical calculation to the sales performance of Gallman Pontiac. While the local market's lack of receptivity directly affects Gallman Pontiac's performance, the statistical formula takes this into account to a large degree when a dealer is required to meet eighty-five percent of the zone or national average to demonstrate minimum performance. If yet another mathematical formula was created to give additional weight to this local condition beyond the provision in the minimum standards formula, the manufacturer could be harmed by a individual dealer's lack of market penetration efforts. Because it is difficult to determine the primary cause and effect of poor market penetration in a specific area, the statistical formula is generally fair to both sides in most situations. It does not unfairly accuse either the dealer or the manufacturer as being responsible for the lack of sales. One indicator of the fairness involved in the application of the formula as designed can be found in Mr. Anderson's comparative analysis of the Naples automobile market and the Sarasota market. Mr. Anderson is the expert in automobile marketing analysis presented by General Motors. This analysis refutes the opinion of Dr. Ostlund, the expert presented by Gallman Pontiac during the hearing regarding automobile marketing analysis. It is Dr. Ostlund's opinion that Naples is a unique market in which the usual statistical formula becomes unfair if it is applied to all registrations in the Dealer's Area of Responsibility. Based upon this analysis, Dr. Ostlund suggests that a weighted average be applied in the standard formula to all of the sales made by Gallman Pontiac during the franchise period. However, even if this were done, Gallman Pontiac's performance would have been 84.7 percent, which is still below the required standard of 85 percent. Contrary to Dr. Ostlund's analysis, the Naples-Sarasota comparison conducted by Mr. Anderson demonstrates that Pontiac can compete in a high income area with similar demographics to Naples within the same zone along the same Florida coast. Therefore, the usual statistical formula remains a reliable indicator of the sales effectiveness of a Pontiac dealer in Naples, Florida, and should be applied without any further weighting of averages in the statistical analysis required by the franchise agreement. Application of Additional Factors Relevant to the Decision Not to Renew Pursuant to Statute A nonrenewal of the franchise agreement is clearly permitted by the franchise agreement. The nonrenewal has been undertaken in good faith and good cause. The manufacturer has continuously encouraged the dealer to meet sales performance standards and has worked with Gallman Pontiac in an effort to achieve this goal within the time frame agreed to by the parties. Because franchise dealers are the major outlet the manufacturer has for the sale of new automobiles, it is essential that minimum levels of sales performance are achieved on a regular basis. Failure to meet the minimum sales performance over the term of this agreement by Gallman Pontiac is a material and substantial breach of the contract.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Highway Safety and Motor Vehicles enter a Final Order dismissing Gallman Pontiac's complaint with prejudice. DONE and ENTERED this 28 day of June, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 28 day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0505 Petitioner's Proposed Findings of Fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #3. Reject all but last sentence. Conclusions of Law. Accept the last sentence. Rejected. Conclusion of Law. Accepted. Reject that the dealer code problem can be attri- buted to the conduct of the manufacturer. Insufficient proof. Accepted. Accepted. Accepted. Rejected. Reject the weighted average basis. See HO #14 and #15.. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #4. Accepted. See HO #6. Accepted. Accepted. Accepted. Rejected. Speculative. Rejected. Contrary to fact. See HO #15. Rejected. Contrary to fact. See HO #15. Rejected. Contrary to fact. See HO #15. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #17. Rejected. Irrelevant. Attempt to shift evidentiary burden. Rejected. See HO #15. Accepted. See HO #13. Rejected. See HO #15. Rejected. See HO #15. Accepted. See HO #13. Accepted. See HO #13. Accepted. Accepted. Accepted. Accepted. See HO #8. Accepted. Rejected. See HO #15. Accepted. Accepted. Rejected. Irrelevant. Accepted. Rejected. See HO #15. Accepted. Rejected. See HO #14. Accepted. Accepted. Accept that additional factor's need to be considered. Rejected Dr. Ostlund's interpretation. See HO #9 through #15. Rejected. Improper summary. Rejected. Irrelevant. Accepted. See HO #6. Accepted. Accepted, except for the last sentence which is an opinion or closing argument as opposed to a finding of fact. Accepted. Rejected. See HO #14. Accepted. Accepted, except for Nissan. Accepted. Accepted. Rejected. See HO Accepted. Accepted. Rejected. Closing argument as opposed to finding of fact. Rejected. Irrelevant and contrary to fact. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Contrary to fact. Rejected. Conclusionary. Accepted. Rejected. Irrelevant. Rejected. See HO #10. Rejected. See HO #17. Rejected. See HO #15 and #17. Rejected. See HO #17. Accepted. Rejected. Contrary to fact. See HO #17. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #6. Accepted. See HO #6. Accepted. See HO #6. Accepted. See HO #8. Accepted. Accepted. Accepted. Accepted. Accepted. See HO 415. Accepted. Accepted. Accepted. See HO #15. Accepted. Accepted. See HO #15. Accepted. See HO #13. Accepted. Accepted. Accepted. See HO #15. Accepted. Accepted. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. See HO #15. Rejected. Irrelevant. Accepted. Accepted. Rejected. Redundant. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. See HO #14. Accepted. Accepted. See HO #9. Rejected. Unreliable conclusion. Accepted. See HO #17. Rejected. Irrelevant. Outside the reasons given for nonrenewal. See HO #8. Rejected. Same reason as given in above. Rejected. Same reason as 49 and 50. Also contrary to fact. Rejected. Irrelevant to this hearing. Rejected. Irrelevant to this hearing. Accepted. See HO #17. Accepted. See HO #15. Rejected. Redundant and argumentative. Accepted. Accepted. Rejected. Improper argument. Rejected. The use of "sales reported" was allowed by the Hearing Officer at hearing. Rejected. Irrelevant in these proceedings. Rejected. Irrelevant and unreliable speculation. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Dr. Ostlund was very credible. Mr. Anderson's analysis, based upon y~he Sarasota- Naples comparison, which tended to refute the testimony of Dr. Ostlund, was given greater weight by the Hearing Officer. COPIES FURNISHED: James D. Adams, Esquire Michael J. Alderman, Esquire Feaman, Adams, Harris, Department of Highway Fernandez & Deutch, P.A. Safety And Motor Vehicles Corporate Plaza, Fourth Floor Neil Kirkman Building 4700 N.W. Second Avenue Tallahassee, Florida 32399-0500 Boca Raton, Florida 33431 S. William Fuller, Jr., Esq. Vasilis C. Katsafanas, Esquire Fuller Johnson & Farrell Rumberger, Kirk, Caldwell, Post Office Box 1739 Cabaniss, Burke & Wechsler Tallahassee, Florida 32302 11 East Pine Street Orlando, Florida 32802 Charles J. Brantley, Director Division of Motors Vehicles William J. Whalen, Esquire Department of Highway Office of General Counsel Safety and Motor Vehicles General Motors Corporation B439 Neil Kirkman Building New Center One Building Tallahassee, Florida 32399-0500 3031 West Grand Boulevard Detroit, Michigan 48232 Enoch J. Whitney, Esquire General Counsel S. Thomas Wienner, Esquire Departments of Highway Dykema Gossett Safety and Motor Vehicles 35th Floor Neil Kirklan Building 400 Renaissance Center Tallahassee, Florida 32399-0500 Detroit, Michigan 48243
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Todd P. Resavage, an Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Parties’ Motion to Relinquish Jurisdiction based on a Settlement Stipulation entered into between the parties, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly it is FOUND and ORDERED as follows: 1. That Respondent shall pay an administrative fine in the amount of two hundred fifty dollars ($250.00) per count for a total of one thousand five hundred dollars ($1,500.00) to be paid on or before September 30, 2013. All payments are to be made by returning a copy of the order with payment to: Filed August 29, 2013 2:08 PM Division of Administrative Hearings Department of Highway Safety and Motor Vehicles Office of General Counsel 2900 Apalachee Parkway, Room A432, MS-61 Tallahassee, Florida 32399 2. If Respondent pays the amount specified in paragraph one above within the specified time the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay the amount specified in paragraph one, on the day following the due date specified in paragraph one, Respondent’s motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. 3: If after suspension Respondent pays the amount specified in paragraph one above within 30 days following the date of suspension, its motor vehicle dealer license will immediately be reinstated without further penalties or sanctions. 4. If Respondent fails to pay the amount due by the 30" day following the date of suspension, on the 31" day following the date of suspension Respondent’s motor vehicle dealer license shall be revoked by the Department without further notice. If the Department suspends or revokes Respondent’s motor vehicle dealer license for non-payment as specified in paragraphs two and three above, said suspension or revocation shall be without recourse to the Respondent and Respondent hereby expressly waives any right to appeal or otherwise contest the suspension and revocation. DONE AND ORDERED this a | day of August, 2013, at Tallahassee. Leon County, Florida. Julie 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 i) Filed in the official records of the Division of Motorist Services this 2” day of August, 2013. ane , t leisnd ta Nalini Vinayak, Dealer Yicens 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 Rule 9.110, Rules of Appellate Procedure. JB:jde Copies furnished: Cathy Coleman Regional Administrator Dealer License Section Teresa Williams, Esquire Williams and Trese 12 Southeast 7" Street, Suite 703 Ft. Lauderdale, Florida 33301
The Issue Whether the Respondent knowingly sold rebuilt vehicles without disclosing in writing to the purchaser, customer, or transferee that the vehicles were previously titled as rebuilt vehicles.
Findings Of Fact The Respondent, Charles R. Kuhn, III, is and was at all times relevant to the allegations in the administrative complaint a licensed independent motor vehicle dealer in Florida. The Respondent did business in the name A-1 Auto and Truck Center and was located at 12180-1 Phillips Highway, Jacksonville. The Department is the state agency authorized by statutes to regulate licensed independent motor vehicle dealers and to maintain the titles of motor vehicles in the State of Florida. Pam A. Albritton testified about her experiences buying a vehicle from the Respondent. On August 22, 2003, as reflected by the date on the installment sales contract, Albritton purchased a 2000 Volkswagen (VW), VIN (Vehicle Identification Number) 3 VWSD 29 M1YM 197846, for $8,281.80. The Respondent did not at any time provide Albritton with a written statement that the vehicle she purchased, VIN 3 VWSD 29 M1YM 197846, hereafter the Albritton vehicle or car, was a rebuilt vehicle and had been previously titled as a rebuilt vehicle. The Respondent did not tell Albritton that this vehicle was a rebuilt vehicle. Albritton did not see the certificate of title to the vehicle until after the sale of the vehicle. Albritton took the car to an authorized VW dealer in November of 2003 because it was not shifting gears properly. The dealer found that the vehicle had suffered extreme damage from an accident and needed extensive repairs to the engine control system and the airbag in order to make the car safe to drive. The dealer told Albritton what had been found and advised her not to drive the car until it had been repaired. Albritton confronted the Respondent about the problems with the vehicle, and the Respondent gave her a handwritten "warranty" dated November 20, 2003. Pursuant to this agreement, Albritton took the car to the Respondent to have the seatbelts fixed; however, the repairs did not actually make the belts safe because the seatbelt retractor mechanism would not lock. In December of 2003, the wheel bearings on Albritton's car broke, and she contacted the Respondent about getting the car fixed. She was informed that the Respondent was away for two weeks, and nothing could be done until he returned. Needing her car for transportation in her work, she paid $200 to have the wheel bearings repaired. Pursuant to a mediation agreement, Albritton agreed to settle her complaint against the Respondent on the basis that he would get her a comparable vehicle. The Respondent was supposed to contact Albritton within 30 days of the mediation but failed to do so. The records introduced at hearing show that Albritton's vehicle had been re-titled as a rebuilt vehicle. Such a title indicates that the vehicle in question had been written off as an insurance loss and the original title cancelled or destroyed. Thereafter, the vehicle was repaired, and the person making the repair obtained a new title, which when issued, showed that the vehicle was rebuilt. Aylwin S. Bridges testified regarding his purchase of a VW from the Respondent. On or about June 14, 2003, Aylwin S. Bridges, purchased a 2000 VW, VIN 3 VWTE 29 MXYM 135556, from the Respondent for $11,555.00. Neither prior to nor at the time of the sale did the Respondent provide Bridges a written statement that the 2000 VW, VIN 3 VWTE 29 MXYM 135556, was a rebuilt vehicle. The Respondent did not tell Bridges that the car he was purchasing was rebuilt. The records introduced at hearing show that the Bridges' car had been re-titled as rebuilt. Bridges did not see a certificate of title to the vehicle prior to the sale of the vehicle. The Bridges' vehicle had extensive mechanical problems. For example, the engine control module had been spliced into the car and several codes had been deleted from it; the seat belts would not work; and the horn would not work. When Bridges sought to trade the vehicle, he found that the most he was offered for the car was only $2,500 because it was rebuilt. The Respondent testified in his own behalf. He did not deny having failed to disclose to Albritton and Bridges in writing prior to selling them their cars that the vehicles had previously been titled as rebuilt vehicles. The Respondent introduced a general disclaimer, Respondent's Exhibit 7, which was provided to Albritton and Bridges. This disclaimer states that the purchaser is buying a used car and that used cars may have any one or more of the listed problems. The Respondent testified that he knew the cars were rebuilt, but felt he had complied with the legal requirements of disclosure by providing the buyers with the aforementioned disclaimer. The specifics of the disclaimer are discussed in the Conclusions of Law for purposes of continuity, but are findings of fact.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its final order finding that the Respondent violated Section 319.14, Florida Statutes, on two occasions; fine Respondent $1,000 for each violation; and suspend the Respondent's license for six months for each violation, said suspensions to run consecutively, and that payment of the fine be a condition precedent to re-issuance of a license. DONE AND ENTERED this 1st day of February, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2005. COPIES FURNISHED: Charles Patrick Kuhn, III A-1 Auto and Truck Center 12180-1 Philips Highway Jacksonville, Florida 32256 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Suite A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Suite B439 2900 Apalachee Parkway Tallahassee, Florida 32399
The Issue The issue for disposition in this proceeding is whether Respondent's motor vehicle dealer license should be revoked for his prior conviction of a felony, as proposed in an administrative complaint dated October 26, 1993.
Findings Of Fact It is uncontroverted that Respondent Lorenzo Reddick, Jr. (Reddick) holds an independent motor vehicle dealer license, issued by the Department of Highway Safety and Motor Vehicles (DHSMV). The complaint fails to allege, and there is no evidence of, when the license was issued. The licensed place of business is 3214 Orange Center Boulevard, #C, Orlando, Florida. On April 27, 1993, Reddick pleaded, and was adjudged guilty of a single count offense in a multi-count superseding indictment, in U.S.A. v. Lorenzo Reddick, Case #92-104 Cr-Orl-19, in the U.S. District Court for the Middle District of Florida. The offense, as described in the Judgment, was "Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity", on 12/30/91, pursuant to title 18 U.S. Code, section 1957(a), and title 18 U.S. Code, Section 2. (Petitioner's exhibit #1) Reddick was sentenced to twenty-four months imprisonment, commencing May 21, 1993, with two years supervision after release. According to the court documents comprising Petitioner's exhibit #1, the sentence was less than provided in sentencing guidelines "upon motion of the government, as a result of defendant's substantial assistance." Reddick is currently serving his prison term. At the time of the offense Reddick was not operating nor was he licensed as a motor vehicle dealer. There is no evidence of whether his license was obtained before or after his conviction. There is no evidence whatsoever of the offense other than what is found on the face of the judgment, as reflected above. DHSMV learned of Reddick's conviction in the process of investigating a filed complaint related to failure to transfer title and registration of a vehicle purchased from Reddick's dealership. Neil Chamelin was the manager of DHSMV's dealer license and consumer complaint programs and was responsible for evaluating requests for administrative action and preparing administrative pleadings for the division director. Chamelin received a copy of Reddick's Judgment of Conviction and Sentence and based the administrative complaint on those documents only. Chamelin has no independent knowledge of the offense. DHSMV has a longstanding policy that a single felony conviction may be sufficient for the agency to take action against a dealer's license. That is, the agency has interpreted the language of the relevant statute to mean that a licensee does not automatically get one free felony before his dealer's license is jeopardized, even after the language was amended seven or eight years ago to include a requirement of sufficient frequency of violations as to establish a pattern of wrongdoing.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: that the Department of Highway Safety and Motor Vehicles enter its Final Order dismissing the Administrative Complaint that is the subject of this proceeding. DONE AND RECOMMENDED this 17th day of May, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 17th day of May, 1994. COPIES FURNISHED: Michael J. Alderman Assistant General Counsel Department of Highway Safety & Motor Vehicles Neil Kirkman Building, Room A432 Tallahassee, Florida 32399-0504 James R. Cunningham, Esquire 200 East Robinson, Suite 1220 Orlando, Florida 32801 Charles J. Brantley, Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Room B439 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 by Susan Belyeu Kirkland, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Petitioner’s Notice of Voluntary Dismissal With Prejudice, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED Filed November 16, 2011 2:59 PM Division of Administrative Hearings DONE AND ORDERED this le day of November, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this fa day of November, 2011. ous Nalini Vinayak, Deafer 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. SCLjdce Copies furnished: Jason T. Allen, Esquire Bass, Sox and Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 Bianca G. Liston, Esquire McDonald Toole Wiggins Post Office Box 4924 Orlando, Florida 32802 Nalini Vinayak Dealer License Administrator
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be granted an Independent Motor Vehicle Dealer License, pursuant to Section 320.27, Florida Statutes (2008).
Findings Of Fact The Department is an agency of the State, charged with regulating the business of buying, selling or dealing in motor vehicles under § 320.27, Florida Statutes (2007). The Respondent applied for a license as an Independent Motor Vehicle Dealer. The application was signed by Harold Gillis. Mr. Gillis is the Respondent's president and sole corporate officer. The Resident Agent is Andrew Kiswani. Mr. Kiswani is also known as Alex Kiswani and Andy Kiswani. On the insurance certificate filed with the license application, Mr. Kiswani is shown as one of the named insureds. Named insureds on this type of insurance certificate are typically the dealer principals, the people actually operating the dealership. Mr. Kiswani is a convicted felon. He was convicted twice for theft of state funds. He has thirteen convictions of failure to file state tax returns and seven convictions of issuance of worthless checks to the Department of Revenue. Mr. Kiswani previously was licensed as a Motor Vehicle Dealer, as President of Ocala Auto and Truck Sales, Inc. That license expired on April 30, 2008. On May 19, 2008, Mr. Gillis and Mr. Kiswani displayed vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed location. Both of them were warned by Department employees to cease the unlicensed activity. On June 2, 2008, Mr. Gillis and Mr. Kiswani again displayed motor vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed premises. They were again warned by Department employees to cease the unlicensed activity. On June 11, 2008, Ocala Auto and Truck Sales, Inc. sold a car to James Reed. That seller failed to apply for a Certificate of Title on behalf of Mr. Reed and failed to pay off a lien on the vehicle, within 10 days of acquisition of the vehicle. Ocala Auto and Truck Sales, Inc., sold a vehicle to Wesley Leon Linsey. On February 7, 2007, the seller failed to apply for a Certificate of Title and registration within 30 days of delivery of the vehicle. On December 28, 2007, Ocala Auto and Truck Sales, Inc. entered into a contract with Darrell Lenamond for the consignment sale of a motor vehicle owned by Mr.Lenamond. Ocala Auto and Truck Sales, Inc. sold the vehicle and never paid Mr. Lenamond the money due him from the sale. Mr. Kiswani operated Mr. Gillis's previous dealership. He would be actively involved in operating the dealership for which the license is sought, by the Respondent Corporation, as its Resident Agent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED: That the Florida Department of Highway Safety and Motor Vehicles enter a Final Order denying the Respondent's license application. DONE AND ENTERED this 31st day of July, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 31st day of July, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Harold Gillis Certified Motors, Inc. 2895 South Pine Avenue Ocala, Florida 34471
The Issue The issue for determination in this proceeding is whether Petitioner is entitled to the specific exemption in Section 320.642(5), Florida Statutes, from the general notice and protest provisions in Section 320.642.
Findings Of Fact Landmark Chevrolet, Inc., d/b/a A1 Mandel Chevrolet ("Landmark") operated a Chevrolet dealership located at 15455 West Dixie Highway, North Miami Beach, Dade County, Florida until August 2, 1989. Landmark operated the dealership pursuant to: (a) a Dealer Sales and Service Agreement (the "Dealer Agreement") between Landmark and Petitioner; and (b) a Franchised Motor Vehicle Dealer License from Respondent, License Number 9VF-10574. On August 2, 1989, Landmark ceased customary sales and service business operations. Respondent revoked Landmark's license on October 12, 1989. The license revocation resulted from an independent investigation conducted by Respondent. Petitioner notified Landmark on August 17, 1989, of Petitioner's intent to terminate the Dealer Agreement pursuant to Section 320.641, Florida Statutes. A copy of the notice of intent to terminate was furnished to Respondent in accordance with the requirements of Section 320.641. Landmark filed a Complaint with Respondent on November 15, 1989, contesting Petitioner's termination of the Dealer Agreement. The Complaint invoked the protection of Section 320.641, Florida Statutes. Pursuant to Section 320.641(7), Petitioner was prohibited from terminating the Dealer Agreement prior to a final adjudication in the franchise cancellation proceeding. Landmark's Complaint was referred to the Division of Administrative Hearings on December 6, 1989. Petitioner filed a motion to dismiss the Complaint. Petitioner's motion to dismiss was granted in a recommended order entered by Hearing Officer Michael Parrish on January 22, 1990. A final order dismissing Landmark's Complaint was entered by Respondent on April 30, 1990. The time for appealing the final order expired on May 30, 1990, without appeal. Petitioner notified Respondent on December 5, 1990, of Petitioner's intent to open a successor dealer for Landmark. Respondent determined in a letter dated December 19, 1990, that the proposed opening of the successor dealer was not exempt from the notice and protest provisions of Section 320.642, Florida Statutes. Respondent determined that the 12 month period of exemption began to run on October 12, 1989, when Landmark's license was revoked and expired prior to the date of the proposed opening of the successor dealer. Petitioner had no prior notice of either Respondent's intent to revoke Landmark's license or the actual revocation of Landmark's license. Petitioner first learned of Respondent's revocation of Landmark's license on December 19, 1990. At that time, Respondent notified Petitioner that the 12 month period of exemption from protest had expired for purposes of the proposed opening of the successor dealer in North Miami Beach. Respondent's determination that the 12 month period of exemption in Section 320.642(5), Florida Statutes, began on the date that Landmark's license was revoked constituted incipient agency action. The incipient agency action taken by Respondent deviated from Respondent's prior practice. Respondent's action determined the substantial interests of Petitioner. Petitioner was prohibited by Section 320.641(7), Florida Statutes, from opening a successor dealer pursuant to Section 320.642(5) until a final adjudication was entered in the franchise cancellation proceeding under Section 320.641. Landmark's license was revoked on October 12, 1989. The franchise cancellation proceeding began on November 15, 1989, when the Landmark filed its complaint. A final order was entered in the franchise cancellation proceeding on April 30, 1990. The time for appeal expired on May 30, 1990. Petitioner did not notify Respondent of Petitioner's intent to open a successor dealer until December 5, 1990. Proposed Rule 15C-7.004 was published in the Florida Administrative Weekly, Vol. 17, No. 16, at page 1721, on April 19, 1991. Proposed Rule 15C-7.004(4)(a) provides: Application for Reopening or Successor Dealership, or for Relocation of Existing Dealership. If the license of an existing franchised motor vehicle dealer-is revoked for any reason, or surrendered, an application for a license to permit the reopening of the same dealer or a successor dealer within twelve months of the license revocation or surrender shall not be considered the establishment of an additional dealership if one of the conditions set forth in Section 320.642(5) is met by the proposed dealer. (emphasis added)4 Proposed Rule 15C-7.004(4)(a) was published prior to the formal hearing but will not become effective until after the formal hearing.5 Respondent's determination in this proceeding, that a closing occurs upon the revocation or surrender of a dealer's license, is consistent with Proposed Rule 15C-7.004(4) (a).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order should be entered denying Petitioner's request for an exemption from protest under Section 320.642(5), Florida Statues, for the proposed opening of a successor dealership. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of July, 1991. DANIEL MANRY 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 15th day of July, 1991.
