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 is whether Respondent engaged in prohibited discriminatory conduct against Petitioners, Irene Cassermere (Ms. Cassermere) and Milagross Diaz (Ms. Diaz), within the terms and conditions, privileges, or provisions of services or facilities in the sale or rental of real property in violation of Section 760.23, Florida Statutes (2002).
Findings Of Fact Ms. Diaz is a female of Hispanic ethnicity with a physical disability that limits one or more of her major life activities. At all times material, she lived in the State of New York. Ms. Diaz was in Florida during the month of February 2002. On February 20, 2002, she completed an application for lot rental in the Sherwood Forrest Mobile Home Park (Sherwood Forest) with the intent to purchase a mobile home located on a rental lot at 216 London Drive, Kissimmee, Florida, owned by Beth Koze (Ms. Koze), who did not testify. Respondent informed Ms. Diaz that her credit check would be completed within a couple of days to ascertain her income and credit history. It was her understanding that Respondent had no interest in the potential purchase transaction between her and Ms. Koze. However, Respondent explained to Ms. Diaz, that ownership of a mobile home at the time of application was not required in order to be approved. According to Ms. Diaz, Respondent eventually informed her that due to insufficient income shown on her application she had been disapproved for lot rental. Ms. Diaz testified that Respondent informed her that she needed approximately twice the amount of her reported monthly income to qualify for lot rental approval. Thereafter, Ms. Diaz submitted a second lot rental application to Respondent. On the second application, Ms. Diaz included a co-applicant, Ms. Cassermere, who intended to relocate to Florida with her when the mobile home purchase and the lot rental application were completed. No monthly income for Ms. Cassermere was included on the lot rental application. On the second lot rental application, Ms. Diaz testified that she listed her "Occupation of Applicant" as "disabled." In the column regarding "income," she included her income and listed a Mr. LaRosa as a source of monthly income of $400.00, the amount she claimed Respondent previously informed her she needed to qualify for lot rental. According to Ms. Diaz, Respondent received her second lot rental application and called her to discuss the matter. During the conversation Respondent asked "[W]hat she was doing for Mr. LaRosa that he would put out $400.00 on her behalf." Ms. Diaz testified that she was offended by the tone of Respondent's voice and the implications that she believed prompted the question. She believed the question to have been irrelevant and did not answer. Ms. Diaz testified that in the "Assets and Income" column of her second lot rental application, she listed the amount of $10,000. When asked by Respondent the source of the $10,000, which apparently was not initially included on her first lot rental application, she explained to Respondent she intended to make a cash purchase of the mobile home from Ms. Koze for $10,000. When asked by Respondent the source of such a large sum, when her monthly income was insufficient to qualify for lot rental, she explained that she was to receive a lump sum, five years' retroactive social security benefit payment. Ms. Diaz testified that approximately one month after submitting her second rental lot application to Respondent and having received no response, she called Ms. Koze to ascertain the status of the mobile home sale. Ms. Diaz also testified that Ms. Koze advised her to call Respondent to find out what was holding up her second lot rental application. Believing the lot rental approval was a condition precedent to the mobile home sale, Ms. Diaz testified that at no time during her conversation with Ms. Koze did Ms. Koze advise her that she intended to take the mobile home off the market. Ms. Diaz then called Respondent and spoke with Andy Windfelder (Mr. Windfelder) about the rental lot application status. Mr. Windfelder told her to call Ms. Koze. Ms. Diaz's recollection of the telephone conversation between her and Ms. Koze follows: [A]t this point it's just too much trouble, that at this point she was going to keep the house. . . for a family member--So I told her at this point, she's been patient and she's been holding up with me for that whole time that we were waiting on this credit report, which is four weeks, that I'm not going to put her on the spot of going against them and tell me what transpired in that conversation for them to convince her not to sell to me. I told her that at that point I have no alternative but to tell her that I was going to go file a housing complaint, and I'm sorry that I would have to involve her, but that we had a contract and I gave her a deposit. So at that point she took my name and address and she mailed me my deposit back on a check, and at that point, I didn't contact Sherwood--I contacted Sherwood Forest only to tell them right after that that I filed this housing complaint, that I was going to file this housing complaint . . . As stated, Ms. Diaz filed her discrimination complaint with the Florida Commission on Human Relations and no longer communicated directly with Respondent regarding the matter. The core of Ms. Diaz's complaint is Respondent's failure, or refusal, to contact her by mail or by telephone about the result of her second lot rental application. Further, Ms. Diaz opined that Respondent pressured Ms. Koze not to sell her mobile home to her, which caused Ms. Koze to return Ms. Diaz's purchase contract deposit money. Ms. Diaz argued that Respondent's conduct, unreasonable delay in acting upon her lot rental application and pressure on Ms. Koze not to sell, had two direct effects: (1) she lost the opportunity to purchase the mobile home located on the rental lot at 216 London Drive, Kissimmee, Florida, and (2) she was denied the right to reside in Respondent's facility because she was a dark, disabled, Hispanic female. At all times material, Jeff Leeds (Mr. Leeds) was general manager of Sherwood Forest in Kissimmee, Florida. In that position, Mr. Leeds supervised a staff of 28 persons, of whom many were Hispanic. The park consisted of approximately 1,600 rental sites. According to Mr. Leeds, approximately 30 percent of Sherwood Forest residents were Hispanic, and he had never met Ms. Diaz. According to Mr. Leeds, Ms. Diaz's background check reflected insufficient income that raised an alert. Her second application, based upon his conversation with Ms. Diaz, would include her sister, Ms. Cassermere, as co-applicant. Ms. Diaz was unaware that in October 2003, Ms. Koze placed her mobile home back on the market and was willing to sell to her. This information was made available to Ms. Diaz by and through Respondent through the report provided to Respondent by the Commission's investigator. Based on the evidence of record, Ms. Diaz failed to present any credible evidence to substantiate her claim of discrimination. Ultimate Factual Determinations Respondent rejected Ms. Diaz's initial lot rental application, not because of her handicap or her Hispanic ethnicity, but because through a reasonable process of credit check references, it was discovered that Ms. Diaz's disability income was insufficient to meet Respondent's requirements for lot rental. The additional income of $400.00, an apparent loan from her friend, entered on her second rental lot application raised reasonable concerns; and, when inquiry was made, she refused to respond. There is no credible, competent evidence that Respondent attempted to influence and/or pressure the mobile home owner, Ms. Koze, to take her mobile home off the market and/or cancel her contract for sale with Ms. Diaz. Ms. Koze voluntarily returned Ms. Diaz's deposit money. There is no credible, competent evidence that Respondent intentionally delayed processing Ms. Diaz's second lot rental application with the intent or for the purpose of denying her approval because of her disability, gender, or her Hispanic ethnicity. In short, Respondent did not unlawfully discriminate against Ms. Diaz; rather, the delay caused by her second lot rental application to Respondent was for a legitimate, nondiscriminatory reason and was not proven to be the reason Ms. Koze took her mobile home off the market.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing Petitioners', Irene Cassermere and Milagross Diaz, Petition for Relief. DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 July, 2004.
The Issue Is Ann L. Bell (Ms. Bell) entitled to the issuance of a license to act as an independent motor vehicle dealer through A & B Auto Sales of Jacksonville, Inc. (A & B), that license to be issued by the Department of Highway Safety and Motor Vehicles (the Department)? See Section 320.27, Florida Statutes.
Findings Of Fact Ms. Bell made application to the Department for an independent motor vehicle dealer license. The name of the business would be A & B. The location of the business would be 7046 Atlantic Boulevard, Jacksonville, Florida. In furtherance of the application Ms. Bell received a certificate of completion of the motor vehicle dealer training school conducted by the Florida Independent Automobile Dealers Association on January 26 and 27, 1999. Ms. Bell submitted the necessary fees and other information required by the Department to complete the application for the license, to include the necessary surety bond. At present Ms. Bell lives at 98 Kent Mill Pond Road, Alford, Florida, some distance from Jacksonville, Florida. Ms. Bell intends to move to Jacksonville, Florida, if she obtains the license. Ms. Bell's work history includes a 35-year career with the State of Florida, Department of Insurance, from which she retired as a Deputy Insurance Commissioner. Her duties included supervision of employees and auditing. More recently Ms. Bell has worked as an insurance agent for approximately five years with Allstate Insurance. Ms. Bell also had 17 years' experience involving a business with her former husband in retail floor covering in which she dealt with sales staff and contracts. During another marriage, her then-husband was involved in the automobile business in Mobile, Alabama, as well as the Florida panhandle. Ms. Bell was not an employee of the automobile business conducted by her husband. Ms. Bell was "in and out" of the dealership and attended automobile auctions with her husband. Ms. Bell intends to locate her dealership at the address where Mr. Badreddine formerly operated an independent motor vehicle dealership. Ms. Bell has known Mr. Badreddine for approximately 10 to 12 years. Ms. Bell has purchased cars from Mr. Badreddine. Ms. Bell has borrowed money from Mr. Badreddine. Mr. Badreddine has borrowed money from Ms. Bell. Ms. Bell has a lease related to the location where she would operate her dealership. At present Ms. Bell is using the prospective business location to collect on some accounts for automobiles purchased through Mr. Badreddine in which Ms. Bell has bought the accounts receivable from Mr. Badreddine. The arrangement concerning the accounts receivable is one in which Mr. Badreddine is expected to assist in the collection of monies owed on the accounts. The customers involved with those accounts are Arabs and African Americans. Mr. Badreddine is fluent in Arabic. The amount of money which Ms. Bell has invested is approximately $35,000, in relation to the purchase of the accounts receivable. If Ms. Bell obtains the license she intends to employ Mr. Badreddine to sell automobiles at her lot and to be involved in the purchase of cars at automobile auctions. These duties would be in addition to the collection on the accounts receivable which Ms. Bell purchased from Mr. Badreddine. Ms. Bell does not intend to allow Mr. Badreddine access to the company bank accounts or the completion of the necessary paperwork when cars are sold to the public from her business. In the past, Mr. Badreddine held independent motor vehicle dealer licenses issued by the Department. He lost those licenses based upon unacceptable performance under their terms. Ms. Bell is not unmindful of Mr. Badreddine's performance as a licensee, being informed by the Department in the details. Mr. Badreddine held an independent motor vehicle dealer's license under the name A & D Wholesale, Inc. (A & D), for a business at 9944 Beach Boulevard, Jacksonville, Florida. The Department issued an administrative complaint against that license in Case No. DMV-94FY-566, concerning problems in cars sold by A & D in which the titles and registrations were not transferred appropriately and emissions tests were not performed appropriately. This case was disposed of through an informal hearing and a $5,000 administrative fine was imposed. A further complaint was made against the licensee for the business A & D under an administrative complaint drawn by the Department in Case No. DMV-97FY-621. This complaint involved problems in title and registration transfer, failure to pay an existing lien on a trade-in, and the payment for automobiles obtained in automobile auctions upon which the drafts were not honored. No request for an administrative proceeding was received in relation to this administrative complaint. A final order was entered which revoked the independent motor vehicle dealer's license in relation to A & D. Subsequently, Mr. Badreddine made an application for an independent motor vehicle dealer's license under the business name King Kar Auto Sales, Inc. (King Kar) for the address at which Ms. Bell would operate her business. The decision was made to grant Mr. Badreddine's request for an automobile dealer license for King Kar. Following the grant of the license to King Kar an administrative complaint was brought in Case Nos. DMV-99FY-165 and DMV-99FY-166. The complaint involved the failure to pay off a lien, in which a check intended to settle the account with the lien holder was dishonored and falsification of the application in support of the license for King Kar. The final order disposing of these cases was premised upon the recognition that the license for King Kar had been revoked by virtue of the failure to maintain the necessary surety bond, rendering the allegations in the complaint moot. In the conduct of his automobile business Mr. Badreddine was accused of obtaining property in return for a worthless check involved in dealings with GMAC Corporation. The check was in the amount of $16,671.38. This action was taken in the case of State of Florida vs. Amine Badreddine, in the Circuit Court of Duval County, Florida, Case No. 98-13690CFCR-E. Mr. Badreddine entered a plea of guilty to obtaining property in return for a worthless check and was placed upon probation for a period of one year, with a requirement to make restitution. Adjudication of guilt was withheld. In a discussion between Ms. Bell and Cindy King, Department Compliance Examiner and Nadine Allain, Regional Administrator for the Department, Ms. Bell told the Department employees that Ms. Bell would need Mr. Badreddine to go to the automobile auctions and that "she didn't think it was lady-like to go to an auction." This is taken to mean that Ms. Bell did not believe she should go to the automobile auctions. Ms. Bell also told the Department employees that she needed Mr. Badreddine to sell automobiles for her, that he was a good salesman and that he was good at dealing with Arabs and she was not. Ms. Bell noted that she didn't live in the area where the dealership would be operated and referred to her purchase of the accounts receivable. Ms. Bell told the Department employees that Mr. Badreddine would be given an office in the back of the dealership or in the dealership. Ms. Bell told the Department employees that "she knew absolutely nothing about selling cars." Ms. Bell indicated that she would be relying upon Mr. Badreddine for advise in running her dealership. The reliance on Mr. Badreddine to deal with Arab clients was mentioned pertaining to the circumstances with the previous accounts receivable. The Department offered to license Ms. Bell upon condition that Ms. Bell provide an affidavit to the effect that Mr. Badreddine would not be involved with her dealership. Ultimately, Ms. Bell did not accept this overture. In denying the application for the independent motor vehicle dealer's license the Department gave the following reasons: Your admission of not knowing anything about the car business coupled with your stated intention to rely on the advice and experience of Mr. Amine Badreddine to operate your dealership means that Mr. Badreddine is, de facto, the dealer. Mr. Badreddine previously held independent motor vehicle dealer license number VI-15265, as A & D Wholesale, Inc. An administrative complaint was filed by the department against his dealership involving consumer complaints filed by Gladys L. Stevens, complaint number 93110148; Merrian A. Coe, complaint number 94010340; and Richard Green, complaint number 94030339. As a result of the administrative action, Mr. Badreddine's license was found in violation and fined $5,000.00 for failure to apply for transfer of title within 30 days, issuing more than two temporary tags to the same person for use on the same vehicle, violation of any other law of the state having to do with dealing in motor vehicles, failure to have a vehicle pass an emissions inspection within 90 days prior to retail sale and failure to transfer title. On December 23, 1996, a second administrative complaint was filed against A & D Wholesale, Inc. because of complaints received from Mark S. Smith, complaint number 96020168; Telmesa C. Porter, complaint number 96050435; Nijole Hall, complaint number 96070365; Ella Didenko, complaint number 96080083; Salih Ferozovic, complaint number 96100067; Charles R. Wells, complaint number 9610068; and Adessa Auto Auction, complaint number 96110372. As a result of this administrative action, a Final Order was issued on January 27, 1997 revoking Mr. Badreddine's independent motor vehicle dealers [sic] license for failure to apply for a transfer of title within 30 days, - failure to comply with the provisions of section 319.23(6), F.S., failure to have a vehicle pass an emission inspection prior to retail sale, issuance of more than two temporary tags to the same person for use on the same vehicle, failure to have a title or other indicia of ownership in possession of the dealership from the time of acquiring the vehicle until the time of disposing of the vehicle, failure of a motor vehicle dealer to honor a check or draft. Mr. Badreddine applied for and was issued another motor vehicle dealer's license on April 24, 1998, under the name King Kar Auto Sales, Inc. The license was revoked on October 20, 1998, because of a surety bond cancellation. On November 24, 1998, the department received a complaint from Treflyn N. Congraves, complaint number 98070299. Ms. Congraves filed a complaint with the state attorney which resulted in Mr. Bareddine [sic] being placed on probation for issuing a bad check to GMAC and ordered to pay restitution in the amount of $16,571.38. Mr. Badreddine is currently on probation. The department's investigation showed that Mr. Badreddine had a history of bad credit, failed to continually meet the requirements of the licensure law, failed to honor a bank draft or check given to a motor vehicle dealer for the purchase of a motor vehicle by another motor vehicle dealer, and had failed to satisfy a lien. Consequently, Mr. Badreddine's poor performance as a dealer forces us to deny a license where he may have a financial interest, active participation in the management, sales or any part in the operation of the dealership.
Recommendation Upon consideration of the Facts Found and the Conclusions of Law reached, it is RECOMMENDED: That a final order be entered which grants Ann L. Bell an independent motor vehicle dealer license for the business A & B. DONE AND ENTERED this 17th day of November, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1999. COPIES FURNISHED: Edward P. Jackson, Esquire Jackson & Mason, P.A. 516 West Adams Street Jacksonville, Florida 32202 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 Tallahassee, Florida 32399-0500
Findings Of Fact At all times pertinent to the allegations contained in the Complaint filed by Ms. Morris, she was a resident of Pinellas County, Florida. Respondent, Patrick Marzouca, owned and operated and currently owns and operates American Exchange Car Rental with main office located in Clearwater and satellites located elsewhere in Pinellas County, Florida. In December, 1987, Marcia Morris, Petitioner herein, answered a newspaper advertisement for rental agents placed by American Exchange Car Rental, and was interviewed for the position by Susan Johnson. Shortly thereafter, she was telephoned by Mr. Marzouca, who had been in the office at the time Ms. Morris was interviewed, and who told her to come in to work the next day. Because Mr. Marzouca had been a bit too forward in his approach, reportedly stating, "I want you. I need you as bad as blood.", Ms. Morris declined employment at that time. However, in March, 1988, she did start work at American exchange because of her relationship with Kathy Higgins, also an associate at American, with whom she had worked at the airport. Ms. Morris had previously worked for several rental car agencies and at the time of her employment by American, had, she claims, never been terminated from employment with any of them for cause. As shall be seen below, she was terminated from employment with one agency for failure to disclose a prior DUI conviction which rendered her ineligible for insurance to operate an automobile. As compensation for her services to American, Ms. Morris was to receive $250.00 for a 40 hour work week as a rental agent, and was to have the use of a company car without restriction, if available. Her work hours were from 10:00 AM to 6:00 PM. Work hours were set by the agents themselves so long as the office was covered, but the overall time each office was open, and the length of shift, was determined by Mr. Marzouca and Ms. Higgins who was the overall manager. Individual agents' times were not entered on a time card, but were determined by the agent's initials used when entering or leaving the computer at the time of beginning and ending work. The $250.00 per week compensation was paid regardless of the number of hours worked, and each agent received a commission of 10% on charges for collision waiver sold. The $250.00 per week compensation was paid weekly, but the commission was paid every three months. The car furnished by the company was in her possession the entire time she worked there. Ms. Morris considered herself an employee of American, and was never told by anyone that she was an independent contractor. When she questioned the fact that neither withholding taxes nor social security contribution were taken from her pay, she was advised not to worry about it as the Respondent's lawyer would handle it at the end of the year. The female rental agents were required to wear an American Exchange polo shirt, supplied by the company, and either slacks or skirts. Mr. Marzouca preferred the females wear short skirts, but Ms. Morris would not do that. From the start, even the first day of work, Mr. Marzouca began making comments to Ms. Morris such as, "You're so beautiful, Baby, I want to marry you." He tended to use the word, "Baby" a lot and not a day went by, she claims, without his offering her his unwanted attentions. Over the time she worked there, he offered to buy her clothes so he could attend parties with her; and he offered to buy her jewelry, stating, "I can see a gold necklace around your beautiful neck", and other similar comments. Ms. Morris contends she told Mr. Marzouca on an almost daily basis to "Leave me alone." She also complained to Ms. Higgins and to her coworkers about the situation, seeking advice as to where to draw the line. Since she was single, lived alone, and liked her income, she did not file a formal complaint at first, though she did not like what was going on, and did not like Mr. Marzouca's attentions. She never saw him behave this way or any comparable way toward a male employee. Ms. Morris also worked at Respondent's New Port Richey office. Things were better there, as opposed to the main office, because she was not being "hit on" every day, since Mr. Marzouca did not come to that office on a daily basis. She volunteered to staff that office primarily to get away from him, but this office did not remain open, and when it was closed, she was returned to the Cleveland Street office to work. From time to time, Ms. Morris was requested by Mr. Marzouca to take his aged mother shopping. She claims that when she protested, she was told that she had to do it and did so at least twice during working hours in the afternoon. Mr. Marzouca, on the other hand, claims his mother and Ms. Morris had a friendly relationship until all this ill feeling started. According to him, on at least one occasion, Ms. Morris suggested that his mother spend the day with her for lunch and shopping. Ms. Morris, he claims, used to call in the evenings to talk with his mother and would often ask about her. In response, his mother would often buy small gifts for Ms. Morris. Ms. Morris, he contends, never complained to him about having to take his mother shopping and he categorically denies ever threatening her with the loss of her job if she complained about his mother to him. There is no indication he ever did threaten her, and in any case, there is little relationship between forcing his mother's company on Ms. Morris and job discrimination based on sex. On one occasion, in June, 1988, she was in a car with Mr. Marzouca and another male employee en route to the Tarpon Springs location to shuttle cars. When the other employee went into a store to get some cigarettes, Mr. Marzouca allegedly said to Ms. Morris, "Oh Baby, I'd love to lay my head between your tits." At this time, she was seated in the front seat of the car with Mr. Marzouca. Mr. Marzouca categorically denies this happened. Considering his demonstrated proclivity toward this type of conduct, however, it is found that it did. On another occasion, Mr. Marzouca came up behind her at the rental counter and turned her upside down by the heels. Apparently this was in response to her comment that she needed more oxygen to her brain when she was having difficulty with the computer. Mr. Marzouca admits to doing this, but claims it was done in a jocular fashion at a time when all the employees were laughing and joking together. Though he claims Ms. Morris laughed about it at the time, she, nonetheless, felt strongly enough about it to make it a portion of her complaint. On another occasion, Ms. Morris was offered a television set as a gift by Mr. Marzouca. She had previously mentioned she was moving from one apartment to another and had no furniture or television. This comment was made in the presence of Mr. Marzouca who offered her a van to help her move. A few weeks later he took her to his car and showed her a television set he had bought for her as a gift. She declined to accept it. On another occasion, she accepted a ride with Mr. Marzouca on his boat and claims, now, that this was a form of harassment. She did not relate, however, that, as was brought out later, her sister and her sister's children were also on the boat at the time. Ms. Morris' sister was then and still is an employee of American. Ms. Morris also had breakfast with Mr. Marzouca on at least one occasion but never went on a date with him. Mr. Marzouca relates he has a charge account with a delicatessen located near his main office at which he has left standing orders that any employee who wishes to eat there and who cannot pay for the meal may do so at his expense. Ms. Morris concedes Mr. Marzouca never touched her sexually throughout their relationship, He never threatened her job because she would not go out with him, but she was annoyed by his continual asking her for a date. She states that her current feelings toward him are ambivalent. She neither likes nor dislikes him but because he was "pushy", and she didn't like what he was doing with regard to her, she filed the complaint. Though she first denied it, she admitted to telling others that she did not like the Respondent because of the way he treated her. In July, 1988, Ms. Morris' relationship with American Exchange was terminated at their request. At that time, she was told it was because she caused too much confusion in the office, and when she demurred, Mr. Marzouca advised her it was his company and he could do what he wanted. Other matters presented at the hearing indicate the termination was based on Ms. Morris' failure to remain at the office beyond the close of the business day on one occasion, July 4, 1988 to handle a rental that was to be picked up after office closing hours. When asked to stay by Ms. Higgins, her manager, she flatly refused and left the office just a few minutes after the close. As a result, the rental was not consummated. Ms. Morris claims she waited until shortly after 5:00 PM that day and then left believing that the reservation had been cancelled at three or four that afternoon, and there was no reason to stay. Immediately after their conversation, Ms. Higgins called Mr. Marzouca and reported the situation to him. In the course of that conversation, she described Ms. Morris as a "bitch" and recommended he get rid of her. When she left the office against Ms. Higgins' request on July 4, 1988, she took a company car with her. She did not work on July 5. On July 6, the car was picked up outside her home by Mr. Marzouca and Ms. Higgins. At the time, Ms. Morris had not yet left for work, and when she called in thereafter, requesting a ride to work, Mr. Marzouca told her to stay home and that he would come to her place to talk. She refused and hung up on him. When she called back a few minutes later, Mr. Marzouca told her she was fired but later offered her a job working in the Tarpon Springs office on Sundays from 8:00 AM to 4:00 PM. She declined this offer claiming she needed a full time job. Kathy Higgins worked for American from February, 1988 to August, 1988 as manager of the Cleveland Street office. At that time, American had four branch locations and employed 6 employees in addition to the bookkeeper. At one point, she worked with both Ms. Morris and Mr. Marzouca, and during that period, she heard Mr. Marzouca use the word, "Fuck"; observed him pick Ms. Morris up and put her over his shoulder; make comments about her such as, "That girl has a cute ass. I'd like to fuck her." on an almost daily basis. Each time Mr. Marzouca would approach Ms. Morris in Ms. Higgins' presence, he was always rebuffed. To the best of Ms. Higgins' observation, Ms. Morris never encouraged Marzouca's conduct, and from time to time Ms. Higgins would ask him to leave the girl alone. Whenever she did this, he would go off into the other room. Even Ms. Higgins indicates that male employees were treated differently than females in areas other than those sexually oriented. On one occasion, Mr. Portei, a male employee, left the office without permission for a couple of hours to get his taxes done, leaving the office unattended. When Ms. Higgins told Mr. Marzouca about this, he merely called Mr. Portei to ask why he had left. Nothing else was done about it. Ms. Higgins was on vacation when Ms. Morris was terminated. She had previously discussed Ms. Morris' performance with Mr. Marzouca. At first, during their association, he appeared to like Ms. Morris, but his attitude changed and he advised Ms. Higgins he wanted Ms. Morris out because she was argumentative. As a result, Ms. Higgins talked with Ms. Morris at the New Port Richie office to try to work things out. Sometime thereafter, she advised Mr. Marzouca to stop asking Ms. Morris out, and in response, Marzouca indicated that if he continued, Ms. Morris might quit. Mr. Marzouca admits to having Ms. Morris out on his boat with him and her sister; to having invited her to his home, which she accepted; to offering her the TV which, he claims, he had purchased for his girlfriend and which he offered to Ms. Morris when she admired it; to asking Ms. Morris out on a date once or twice; to allowing Mr. Portei to take off without discipline, but contends Portei had an entirely different type of job; and to using the "F" word "once or twice." He denies, however, having asked Ms. Morris her dress size; having suggested a sexual relationship to her; having asked her to go to Jamaica with him, as she alleged; and he doubts he ever asked Ms. Morris if he could put his head between her breasts. He had several repeated "discussions" with Ms. Morris about the way she treated customers, but did not seem to be able to get through to her and he fired her because of her attitude and because of her failure to stay at work the evening when requested. Even after that, however, he offered her several days work but then could no longer use her in the organization because business, at that time, was bad. Ms. Morris contends she never received any complaints regarding the way she treated customers, but considering the evidence on balance, it is clear that her performance over an extended period with American was below acceptable standards and was the basis for her termination. Mr. Marzouca's "open" approach to Ms. Morris, much of which he admits to, was observed by Mr. Cote, then an employee of American and an admitted recovering alcoholic and drug abuser. The first time Cote saw Ms. Morris was when Mr. Marzouca brought her to the office where he was working and described her as his "new girl". From this introduction and the descriptions used by Mr. Marzouca, such as "pretty" and "nice" girl, he inferred that there was a personal relationship, as well as a professional one between them. Soon after this, Mr. Cote left Mr. Marzouca's employment but remained in the area in another job. He saw Mr. Marzouca in the office several times and heard the conversations between him and Ms. Morris. Mr. Marzouca's language included the regular use of curse words and it was obvious he did not treat Ms. Morris with respect. He made suggestive remarks to her which were, in Cote's opinion, out of place in an employer/employee relationship. At no time when he saw Mr. Marzouca and Ms. Morris together was Mr. Cote ever under the influence of alcohol or drugs. Similar activity by Mr. Marzouca was observed by Mr. Puglia, Marzouca's landlord at the New Port Richey office. Mr. Marzouca introduced Ms. Morris to him as his new employee and his "future wife." Ms. Morris laughed at that. Over a period of time he noticed that whenever Mr. Marzouca would come to the office where Ms. Morris was working, he would get into an argument with her and use abusive language which Puglia found embarrassing. Mr. Puglia declined an invitation by Mr. Marzouca to go out on his boat with him and Ms. Morris but believes Ms. Morris went. He also recalls her indicating to him that Marzouca made her take his mother shopping and she didn't like it. By the same token, Ms. Katheryn M. King, who was working for Mr. Marzouca when Ms. Morris started, frequently saw the relationship between Mr. Marzouca and Ms. Morris. From what she observed, it was clear they were "not fond" of each other but Mr. Marzouca would flirt with her as he did with all female employees. It was obvious, however, that Ms. Morris did not like it nor did she like to be there when Mr. Marzouca was present. Ms. King was also employed by American when Ms. Morris was terminated. In her opinion, the discharge was the culmination of the bad feelings between them topped off by her refusal to stay one evening for a late pickup. Notwithstanding Ms. Higgins' prior testimony that when she worked for American there were at least 6 employees in addition to the bookkeeper, Mr. Kelly, who fulfills that function for Mr. Marzouca at the Cleveland Street office, indicates that the staff varies, usually being 4 or 5 full time employees plus two part timers, including himself. He writes the payroll checks weekly. The rental people are paid a $250.00 per week draw or guarantee against commissions in addition to a 10% commission on the collision waiver charges. In his opinion, a rental agent can earn between $200.00 and $275.00 per week, depending on experience. However, the $250.00 has consistently been paid to the rental agents each week even if no rental commissions are earned. Hiring of agents and the setting of the draw is done by the manager. Ms. Higgins used to be the manager. Mr. Marzouca claims no knowledge of how Mr. Kelly runs the business books. He gives him only the most basic instructions and trusts Kelly implicitly to do what has to be done. Considering the evidence regarding compensation in its entirety, Mr. Marzouca's claim that he exercises little control over this matter is ingenuous at best and it is found that the $250.00 sum is salary paid to an employee, regardless that no withholding or social security contribution is taken out. Ms. King indicated that she paid the taxes due on her earnings even though Mr. Marzouca agreed to withhold them when she spoke with him about it on several occasions. He never did. In her opinion, she was an employee of American, not an independent contractor, because she had a set number of hours to work, worked regular hours, and had no authority to come and go as she pleased. Her opinion as to her status was, on the basis of the evidence, correct. This brings up the factual issue of the true status of the individuals who worked as rental agents. Here, the facts clearly demonstrate that each rental agent, the individuals being so considered, was paid a flat amount per week "draw" against "commissions", plus an additional 10% commission on sales of collision waiver. Mr. Kelly indicated that the draw was paid regardless of whether any "commissions" were earned and no evidence was presented by American to indicate that any "commissions" on rentals were ever calculated and applied against the draw. Consequently, it must be concluded, and it was so found, that the weekly stipend was not a draw but a salary which was supplemented by the free use of a company car. Further, the working hours were set by the company. Though schedules may have been arranged by the individual employee, the employee was to work a set number of hours on certain days designated by management, and the facility at which they worked was open over hours dictated by management. In addition, the employee was required to wear a particular type of clothing provided by the employer. Taken together, all indicia of employment clearly lead to the conclusion that the relationship was an employer/employee relationship and not that of an independent contractor, regardless of American's possible improper failure to take withholding and Social Security contribution out of the earnings, and it is so found. Since being terminated by American Exchange and Mr. Marzouca, Ms. Morris has been employed by several other car rental agencies, A Plus and USA Car Rentals, with compensation by both being a salary and company car. The job with USA was on an on-call basis but neither job was permanent, nor, she claims, was she fired from either. She was, however, terminated at A Plus because, due to a previous DUI conviction on her record, she was uninsurable, a prerequisite for working at a car rental agency. While working there, she earned $300.00 per week and had the use of a company car, valued at $50.00 per week. She worked there from August through November, 1988 and when she left there, applied for unemployment compensation which was initially denied because there was no record of her having been employed. Upon appeal, however, the decision to deny was reversed and she was awarded unemployment compensation for 6 weeks to 2 months. Ms. Morris had failed to disclose her prior DUI conviction when she went to work at A Plus. Also, when she applied for employment with American, she again failed to disclose her prior conviction because, "She would have preferred to discuss it in person." This contention is without merit, however. She has not disclosed her DUI conviction to any employer since being terminated by Respondent. At the end of 1988, Ms. Morris received a IRS Form 1099 from American but never a Form W-2. She has been working for 10 years, and in addition to the previously mentioned employment, was hired and fired by National Car Rental because, she claims, of a personality conflict with the new female manager. After that, she worked for Payless Rental Car with the old National manager, with whom she got along.
Recommendation Based on the Foregoing findings of Fact and Conclusions of law, it is, therefore: RECOMMENDED that the Community Relations Board of the City of Clearwater, acting as the Commission administering Pinellas County Ordnance 84-10, codified under Chapter 17.5 of the Pinellas County Code, enter a Final Order finding the Respondent, American Exchange Car Rental and Patrick Marzouca not guilty of actionable sexual discrimination against Marcia Morris. RECOMMENDED this 12th day of December, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1989. COPIES FURNISHED: Charles D. Lykes, Esquire 300 Turner Street Clearwater, Florida 34616 John D. Tubhill, Esquire 4695 Ulmerton Road Suite 440 Clearwater, Florida 31622 Ronald McElrath, Director Office of Community Relations City of Clearwater, Florida P.O. Box 4748 Clearwater Florida 34618-4748
The Issue There are several issues that were under consideration in these cases. The first issue concerns the taxability of sales of used rental cars by Chestnut Fleet Rentals, Inc., referred to subsequently as Chestnut (DOAH Case No. 81- 1227); second, the taxability of short-term sub-leasing of rental cars by American International Rent-A-Car of Florida, Inc., subsequently referred to as American, to individual sub-leases (DOAH Case No. 81-1228); and finally, the taxability of car rentals (sub-leasing) from American to employees of the federal government when those employees used their personal credit cards or paid cash for the car rental. (DOAH Case No. 81-1228).
Findings Of Fact Petitioner Chestnut is a foreign corporation with authorization to do business in the state of Florida. Petitioner American is a Florida corporation doing business at various places in Florida. The corporate address of both Petitioners is 3000 Admiral Wilson Boulevard, Pennsauken, New Jersey. On October 25, 1976, Patrick Treacy, an auditor with the State of Florida, Department of Revenue, made a tax audit of the books and records of the two petitioning corporations. This audit was made in the offices of the two corporations. The audit was concluded on December 24, 1976, and was followed by an initial Notice of Proposed Assessment of Tax, Penalties and Interest pursuant to Chapter 212, Florida Statutes. Each company was notified of an intention to assess tax. A copy of the initial Notices of Proposed Assessment may be found as Respondent's Exhibits A and B which date from February 17, 1977. Exhibit A is American and Exhibit B is Chestnut. In arriving at these statements of proposed assessments, against American, Treacy had examined, among other things, the sales tax returns, general ledgers, rental agreements, daily branch reports, purchase invoices, and source journals. Reference American, it had been discovered that automobiles which had been rented in accordance with a contract between American and the United States General Services Administration, rentals pertaining to government employees, in Florida, under special rates, were transactions in which no tax was being collected for the benefit of the State of Florida. On occasions where the federal government was billed directly, for the rental, no tax was sought; however, the Notice of Proposed Assessment called for the remittance of tax on those rentals in which the employee paid cash or used a personal credit card in the transaction. Moreover, the initial assessment related to American called for collection of tax on transactions not involving federal employees or the General Services Administration contract in which tax was not collected on certain rentals in Florida. The cars which were the subject of both the General Services Administration rentals and non-government rentals, and for which Florida sought the collection of tax, had initially been leased to American International of Florida, Inc., from Chestnut Fleet Rentals and American International of Atlanta, Georgia, through a primary lease agreement, with the cars to be sublet to the general public. That lease agreement was one in which tax was paid to the State of Florida and credit afforded for that agreement. It is the further sub-lease from American International of Florida to the ultimate consumer that is the subject of the two categories of tax collection for the rental. The period involved is from February 1, 1973 through October 31, 1976. In the Chestnut Fleet Rentals circumstance of the February 17, 1977 assessment, tax collection was sought on the sale of long-term fleet rental cars, in Florida, to the lessees or other consumers, in which the State of Florida believed that sales tax was not collected. On this occasion, a pro-rata assessment was made in view of the fact that Chestnut did not have source documents representing the sales prior to November, 1974. Consequently, the pro-rata estimate was made of the pre- November 1974 sales based upon subsequent sales where records had been kept. At the final hearing Chestnut did not refute the prorata adjustment by contrary proof. The overall circumstance with Chestnut Fleet related to the audit period of February 1, 1973 through October 31, 1976. In all instances related to American and Chestnut, the State of Florida sought and continues to seek a delinquent penalty and interest. In those several categories American and Chestnut were responsible for the collection and remission of any tax which the State of Florida was certified to collect and to keen any needed records to aid in that endeavor. In the American circumstances at issue the incidence of tax fell upon the lessees. In the Chestnut sales the incidence of tax fell upon the purchasers. By correspondence of February 11, 1980 from counsel for the Petitioners, the proposed assessments were challenged. A copy of that correspondence may be found as Respondent's Exhibit C. In referring to the sale of used cars by Chestnut, its counsel did not state opposition as such, it was merely indicated that counsel wished to check with its client to be sure that the client agreed with the figures set forth in the proposed assessment. This was also the circumstance in the situation related to leases to customers other than federal government employees. In effect, counsel for the Petitioner American was asking for the opportunity to verify the tax owed based upon the circumstance that existed after credit was given for taxes that had already been paid. The General Services Administration rentals from American to federal employees were protested in their totality. On June 11, 1980, the protest was responded to by the State of Florida in its Notice of Decision. On that occasion, it was indicated that the position of the State related to the lease of American cars to non-federal employees would remain the same. The lease of American cars to federal employees was upheld in the area of rentals where federal employees paid in cash or through the use of their own credit cards. On that occasion of the notice, reference was made to Rule 12A-1.01(4)(e), Florida Administrative Code, as a basis for sustaining the State's position. That provision states, "When hotel accommodations are paid for directly by church officials from church funds, an exemption certificate may be used to exempt such transactions from tax. If hotel bills are paid by guests and reimbursement is made from church funds as expense accounts of individuals, the tax shall be paid by such individuals. This provision was offered by way of analogy, in the mind of the State of Florida. In the decision, no mention was made of the sale of rental cars by Chestnut. There followed an informal conference between the taxpayers' former attorney who had authored Respondent's Exhibit C, and officials within the Department. At that time, American, through its former counsel, sought to have the State of Florida abandon its request for penalty in the rental circumstance involving non-federal renters, and to have the State possibly consider a stipulated payment schedule for the tax due. It continued to oppose the idea of the assessment of tax on the American rentals through the General Services Administration contract. In the Chestnut Fleet sales of lease cars to consumers, counsel sought the State's acquiescence in the removal of penalties on that tax claim. This informal conference was memorialized in correspondence of former counsel for the Petitioners, a copy of which may be found as Respondent's Exhibit On February 26, 1981, the State of Florida issued its Notice of Reconsideration. A copy of this is found as Respondent's Exhibit F. In this notice, the State continues to assert its right to collect the tax in the several categories that are at issue, denies the opportunity for stipulated payments pending proof of qualification for that payment plan and refuses to consider the question of penalty reduction until the matters have been settled. At that point in time, the agency was proceeding under what, in effect, was a fourth revised notice of assessment as to American and a third revision as to Chestnut. These notices of assessment date from June 25, 1980. The assessment pertaining to the American International rentals per agreement with the General Services Administration are found as Exhibit G by the Respondent, a copy. The assessments pertaining to American International's rentals to persons other than through the General Services Administration contract are found as Respondent's Exhibit H, a copy. Finally, the assessments pertaining to the Chestnut Fleet rental sales to consumers of their off-lease automobiles may be found as Respondent's Exhibit I, a copy. In each circumstance, the state of Florida continues to request the imposition of a delinquent penalty and accrued interest. Following the receipt of the February 26, 1981 Notice of Reconsideration, the Petitioners filed a Request for Relief pursuant to Section 120.57(1), Florida Statutes, related to the issues as set forth in the Recommended Order. Those petitions as amended have been considered through the hearing process.
The Issue The issues in dispute in this matter are as follow: Was the Respondent, Wit Zajack, responsible for the acts of the Respondent, Home Hunters II, Inc., and its employees prior to July 7, 1981, when Zajack's registration as the corporate broker's active firm member became effective? Was Zajack relieved of responsibility for the acts of the corporate broker by appointing a manager and delegating duties to the manager? Did the Respondents use an advance fee rental contract containing information as required by Rule 21V-10.30, Florida Administrative Code? Was the language used in said contract by the Respondents contrary to the intent of Rule 21V-10.30, Florida Administrative Code, and in violation of Section 475.453, Florida Statutes? Did the Respondents fail to refund advance fees upon demand in violation of Sections 475.25(1)(e) and 475.453(1), Florida Statutes? The proposed findings as submitted in this matter by the parties have been considered by the Hearing Officer. To the extent they have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Wit Zajack, is a licensed real estate broker holding License #0219881. The Respondent, Home Hunters II, Inc., was a corporate real estate broker holding License #0218141. At the time of the accounts described in the Administrative Complaint, Home Hunters was operating as a corporate real estate broker. Home Hunters was engaged in a rental service business and advertised rental property information or lists, collecting an advance fee from prospective lessees. Zajack was aware that Home Hunters was engaged in the advance fee rental business from the beginning of his association with the firm. Zajack applied for registration as the active firm member for Home Hunters on March 5, 1981. His application contained various discrepancies and was returned for correction on May 8, 1981. The application was corrected and returned after 20 days 1/ to the Board of Real Estate, whereupon Zajack was registered as the active firm member effective July 6, 1981. On or before May 6, 1981, Zajack was held out to the public as being affiliated with Home Hunters by a sign at Home Hunters' offices on Colonial Drive in Orlando, Florida. At all times material to the allegations of the Administrative Complaint, Zajack was an officer of Home Hunters. Home Hunters used the contract form exemplified in Petitioner's Exhibits 8 and 11 from the start of its business activities until March of 1982. This form does not contain the language required by Rule 21V-10.30, Florida Administrative Code. At least as early as October of 1981, Zajack was aware of the fact that Home Hunters' contract did not meet the requirements of Rule 21V-10.30, Florida Administrative Code. He directed Tom O'Toole, the manager of Home Hunters, to correct the forms around the first part of 1982, but the forms were not corrected. Zajack referred all calls and letters of complaint which he received regarding the failure of Home Hunters to make refunds to O'Toole. O'Toole was given the responsibility to deal with all disputes for Zajack. Zajack did not follow up on the complaints. During this time, Zajack resided in Fort Myers, Florida. O'Toole and Zajack's business partner, Ralph Snyder, Jr., organized and ran Home Hunters. Melissa Diehl entered into an advance fee rental contract with Home Hunters on July 1, 1981, paying Home Hunters $50 for this service Diehl did not receive information on apartments which was consistent with the specifications she had given Home Hunters, or which were available for rental. She called Home Hunters about apartments she saw listed in its advertisements in the newspaper and was advised they had been rented. Diehl located a rental on her own and requested a refund from Home Hunters. She made several demands for a refund but never received a refund. She specifically asked to speak with Zajack but was told he was not available. On June 16, 1981, Brenda Mosely entered into an advance fee rental contract with Home Hunters, paying Home Hunters $50 for its services. Mosely called Home Hunters as required by the contract but did not receive listing information which was consistent with the specifications she had stated in her contract. Mosely orally requested a refund of her money after the 21-day period. She was advised to put her request in writing, which she did. She was denied a refund by Home Hunters on the basis that she had not called for 21 days, because she had not called on weekends when Home Hunters was closed. Ralph Tropf contracted with Home Hunters on March 26, 1981, for rental information, paying a $50 fee to Home Hunters in advance for its services. None of the information he received was consistent with the specifications he had given to Home Hunters. Tropf called for the 21-day period required in the contract and found a rental on his own. On April 16, 1981, Tropf made a written request for a refund. He never received a reply from Home Hunters. Tropf reported the matter to the Better Business Bureau, which forwarded to him the reply of O'Toole which stated Tropf had not complied with the terms of the contract to call for 21 days. On April 27, 1981, O'Toole advised Tropf that Zajack was the person to whom Tropf should detail his complaints. In March of 1981, Mrs. Gwenda Eva Roe had a similar experience to those described above in attempting to obtain a refund of money paid by her minor daughter to Home Hunters for rental information services.
Recommendation Having found that the Respondents, Wit Zajack and Home Hunters II, Inc., are in violation of Rule 21V-10.30, Florida Administrative Code, and Sections 475.453 and 475.25(1)(e), Florida Statutes, it is recommended that the license of Wit Zajack be suspended for one year. DONE and ORDERED this 22nd day of July, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1982.
The Issue The issue is whether respondent's independent motor vehicle license should be disciplined for the reasons set forth in the administrative complaint filed on September 6, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Charles W. Antolick, operated an independent automobile dealership under the name of C. Antolick Car & Truck Sales at 7400 Highway 21, Keystone Heights, Florida. He has been issued independent motor vehicle dealer license number VI-10846 by petitioner, Department of Highway Safety and Motor Vehicles (Department). That license authorizes respondent to engage in the business of buying, selling, or dealing in motor vehicles. Based on complaints received in June 1996 from two consumers, Florrie B. Mingo and Devon T. Ross, the Department conducted an investigation of respondent. The Department then issued an administrative complaint on September 5, 1996, alleging that respondent failed to apply for registration and title for two used automobiles sold by him to Mingo and Ross in November 1995. Respondent denies that his dealership sold the vehicles. Except for the allegations raised in this proceeding, respondent has an unblemished record as a licensee. An Employee Named Pettway In 1995, Gregory A. Pettway, a resident of Gainesville, Florida, was employed by respondent as a mechanic. Effective July 19, 1995, Pettway was authorized to "buy/sell vehicles under (respondent's) license at Big Sun Auto Auction," an automobile wholesaler and auctioneer in Ocala, Florida. This authorization only enabled Pettway to buy cars on a wholesale basis on the premises of Big Sun Auto Auction. Pettway also held similar authorization to purchase cars at a Jacksonville car auction. A disputed fact in this case is whether Pettway was authorized to sell cars on behalf of respondent on a retail basis, that is, to persons such as Mingo and Ross. To establish that fact, petitioner relies upon a letter dated June 5, 1996, from respondent’s wife to Frank Heath, a Department employee based in Ocala, Florida. In the letter, she stated that “it was always customary for me to give Greg Pettway a receipt every time he would turn in a contract and pay tax and title for his customer.” Although received in evidence as a part of petitioner’s composite exhibit 2, the statement was not clarified or explained at hearing even though the wife was present, and it was not used by petitioner when respondent was cross-examined. Given respondent’s contrary testimony at hearing, which was not seriously challenged, his testimony is accepted as being the most credible and persuasive on this issue. Accordingly, it is found that Pettway was not authorized to sell vehicles for respondent on a retail basis. In Pettway's role as respondent's representative at auctions, he would attend and bid on cars, and if successful, he would then transport the car to respondent's car lot in Keystone Heights. After a car was purchased, Pettway was instructed by respondent to turn over all paperwork related to the purchased vehicle. It can be reasonably inferred from the evidence that, although he was not authorized to sell cars on a retail basis, Pettway had access to respondent's bill of sale forms and, without respondent's knowledge, he took a number of them for his own use. He used two such forms in conjunction with the Mingo and Ross transactions. After learning that Pettway had made these two unauthorized sales, respondent terminated Pettway’s employment in January 1996. Although the evidence shows that Pettway still resides in Gainesville, it is surprising that neither party subpoenaed him to attend the final hearing. Therefore, any statements allegedly made by Pettway are hearsay in nature and cannot be used to make findings of fact. The Mingo Transaction Mingo is a resident of Brooker, Florida. Through a mutual friend, she was introduced to Pettway and learned that he sometimes went to car auctions. Mingo was interested in purchasing a 1985 Cadillac and was led to believe that Pettway could obtain one at a fair price. Accordingly, one evening in September 1995 she and Pettway traveled to a Jacksonville car auction. Respondent had authorized Pettway to attend the auction, but he was unaware of Pettway's efforts to buy a car for Mingo. Although Pettway purchased two cars that evening, he was unsuccessful in locating a 1985 Cadillac. On October 4, 1995, respondent, Pettway, and Mingo traveled together in Pettway's truck to Big Sun Auto Auction. Respondent was under the impression that Mingo was Pettway's girlfriend and was merely accompanying him to the auction. At the auction, Mingo saw a violet colored 1985 Cadillac and asked Pettway to bid on the vehicle. After Pettway made a successful bid, Mingo paid Pettway $1,500.00 cash as a deposit, and Pettway gave her a receipt. It is fair to infer that Pettway used all or part of Mingo's money to pay for the vehicle and pocketed the remainder, if any, as profit. There is no evidence that respondent was aware of the transaction, and he did not authorize Pettway to sell the car to Mingo under his dealer's license. Big Sun Auto Auction requires that all bidders sign a log book to evidence each car sale. That evening, Pettway placed his initials on the log book to indicate that he had received the paperwork for Mingo’s vehicle from the auctioneer. Respondent also purchased a car that evening and drove the car back to his dealership. Meanwhile, Pettway transported Mingo’s vehicle to Gainesville on his truck. The vehicle was never taken to respondent's lot. On November 8, 1995, Mingo gave Pettway another $684.00 making a total purchase price of $2184.00. This amount included a sales price of $1900.00, sales tax of $114.00, and tag, title and miscellaneous fees of $170.00. Pettway obviously earned a profit on the transaction. The bill of sale given by Pettway to Mingo on November 8 was on respondent's bill of sale form and contains Pettway's signature as "agent." Respondent did not sign the form and was unaware of the transaction. Mingo was led to believe that she would receive her title, tag and "paperwork" within a few weeks. Pettway never turned over any money or paperwork to respondent regarding the Mingo transaction. Also, he never disclosed the sale to respondent. When Mingo was unable to obtain a title or registration for the vehicle from Pettway, she contacted respondent, whose name was on the bill of sale. Until then, it is fair to infer that Mingo always considered the transaction to be a private one with Pettway, and not respondent. Indeed, the transaction was consummated at Pettway’s home, and not on the dealer’s licensed premises. Respondent was understandably reluctant to furnish paperwork for a transaction in which he did not participate. Even so, at the urging of the Department, respondent and Mingo met at a local tag office in June 1996 for the purpose of seeking to reach an amicable settlement. When Mingo declined to provide respondent with an original copy of the bill of sale, he balked at filling out the necessary paperwork for a title. An argument ensued, an agreement was never reached, and Mingo did not receive her title. The present status of the vehicle is not of record. The Ross Transaction In late October 1995, or just before Mingo made the final payment on her vehicle to Pettway, she asked him to locate a car for her nephew, Devon T. Ross. By chance, on October 4, 1995, Pettway had purchased a 1980 Oldsmobile Cutlass from Big Sun Auto Auction for $460.00 and had it parked at his house in Gainesville. On November 7, 1995, Pettway received a title to the vehicle from Big Sun Auto Auction and signed the auctioneer's log that date to acknowledge receipt of same. Pettway never told respondent that he had purchased this vehicle. In late October or early November 1995, Devon and his father, Johnny G. Ross, went to Pettway's house and inspected the car. Devon agreed to purchase it for $1670.00, which included a $1500.00 sales price, $90.00 for sales tax and $80.00 for tag, title and miscellaneous fees. On November 6, 1995, Pettway drove the car to Devon’s house where his mother paid Pettway the full price in cash. Respondent was unaware of this transaction, and he had not authorized Pettway to sell the vehicle under his license. It is fair to infer that when Devon entered into negotiations with Pettway to buy the car, he considered this to be a private transaction between he and Pettway, and not with respondent's dealership. Devon was given a bill of sale filled out on one of respondent's forms. Pettway signed the form as seller while both Devon and his father are listed as the co-owners. Devon was led to believe that he would receive the title within a few days. Pettway did not turn over any money or paperwork regarding the transaction to respondent. After Devon did not receive a title within a reasonable period of time, his mother attempted to contact Pettway on numerous occasions by telephone. Pettway, however, would not return her calls. Devon's mother then contacted respondent in December 1995 regarding the status of her son's title. Although respondent was unaware of the sale, he agreed to contact Big Sun Auto Auction and make inquiry regarding the status of the title. Throughout the months of January through April 1996, respondent continued these efforts. This was corroborated by testimony from a Big Sun Auto Auction title clerk. In April 1996, the auctioneer finally confirmed that, according to its sign-off log, the title had been picked up by Pettway in November 1995. On January 17, 1996, the title to Devon’s vehicle was sent by an unidentified person to the Department's Tallahassee office with a request that the automobile be "junked." Department regulations do not require that the person requesting such action be identified. It is noted, however, that Pettway had been given the title on November 7, 1995, and had never turned it over to respondent. In accordance with this anonymous request, the Department junked the title on January 17, 1996. Respondent was unaware that this action was taken. In February 1996, Devon was rear-ended by another vehicle and his car was totaled. He was offered $1000.00 by the other driver's insurance company as settlement, but he was required to produce a title in order to collect the money. Because he had never been issued a title, the insurance company declined to make a settlement. In an effort to resolve this matter, on July 11, 1996, respondent offered to refund Devon the money paid by Pettway ($460.00) for the vehicle if Devon would return the car to his licensed premises. Devon refused since he would be required to pay a wrecker to tow his disabled vehicle to Keystone Heights. The current status of his vehicle is not of record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order dismissing the administrative complaint with prejudice. DONE AND ENTERED this 27th day of March, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1997. COPIES FURNISHED: Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room 432A Tallahassee, Florida 32399-0504 Charles W. Antolick 22 Comanche Trail Hawthorne, Florida 32640-3736
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal of Request for Hearing based on Respondent’s relinquishment of its motor vehicle dealer license, 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 9, 2010 8:49 AM Division of Administrative Hearings. DONE AND ORDERED this pi G. of June, 2010, in Tallahassee, Leon County, Florida. RL A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this day of June, 2010. Ce ™ NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: R. Lee Dorough Dorough Calzada & Soto, LLP 419 North Magnolia Avenue Orlando, Florida 32801 Robert Hartman Seminole Scooters, Inc. 6227 Park Boulevard Pinellas Park, Florida 33781 James K. Fisher, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A308 Tallahassee, Florida 32399 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602