The Issue The issue is whether Respondent engaged in business activities requiring a motor vehicle dealer license while its license was suspended.
Findings Of Fact Respondent is a motor vehicle dealer that, at all material times, has been located at 5800 Northwest 27th Avenue, Miami. Except for the period of suspension discussed below, at all material times, Respondent has been licensed to operate as a motor vehicle dealer, holding license number VI-1005997. In the course of business, Respondent acquired possession of a 2007 Suzuki motor vehicle, bearing VIN KL5JD66Z97K644005. Respondent acquired title to the Suzuki by a state of Maryland Certificate of Salvage issued by Nationwide Insurance on August 13, 2010. The certificate shows "damage greater than 75% and repairable" and Respondent as the buyer. Following an informal hearing on May 2, 2012, Petitioner issued a final order on June 18, 2012, that, among other penalties, suspended Respondent's motor vehicle dealer license for 90 days, effective July 1, 2012, for issuing more than two temporary tags to the same person for the same vehicle, in violation of section 320.27(9)(b)17, Florida Statutes, and for issuing fraudulent temporary tags, in violation of section 320.131, Florida Statutes. On August 12, 2012, Respondent sold the Suzuki to 4A Body Shop, Inc. On August 2, 2012, Respondent executed the documentation necessary to complete this transaction.
Recommendation It is RECOMMENDED that the Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 31st day of May, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 May, 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 Herminio Frometa 5800 Northwest 27th Avenue Miami, Florida 33142 Dennis S. Valente, Esquire Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399 Boyd Walden, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-435 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Steve Hurm, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue Whether or not the overweight fine and fee for an International Registration Plan (IRP) Trip Permit in the total amount of $1,700.00 assessed Brandywine Auto Sales, Inc. by the Department of Transportation was correct under the provisions of Sections 316.545 and 320.0715 F.S.
Findings Of Fact On March 17, 1990 Officer David Spencer of the Department of Transportation's Weights Enforcement Division stopped a 1986 GMC "lowboy" trailer at the weight station on SR 9 (I-95) in Yulee, Nassau County, Florida. The vehicle had been proceeding north in the northbound lanes approximately one mile before entering Georgia. When stopped, the GMC trailer was loaded with a Warner & Swasey grade- all, which is heavy machinery, an earth mover. When stopped, the vehicle displayed a Maryland "dealer" tag on the window, accompanied by a State of Maryland registration certificate for Brandywine Auto Sales, Inc., as a dealer. When weighed, the vehicle/load weighed in at 68,400 pounds. The Respondent was allowed 35,000 pounds as a legal weight pursuant to Section 316.545(2)(b) F.S., but the agency assessed five cents per pound of excess weight (68,400 - 35,000 = 33,400 pounds), totalling $1,670.00. The fine, plus a $30.00 statutory fee for an IRP Trip Permit and Temporary Fuel Use Permit was paid to the Department of Transportation (DOT) via Western Union, and the vehicle was issued an IRP Trip Permit and Temporary Fuel Use Permit so that it could complete its trip. The fine/citation was protested by the Respondent, Brandywine Companies, which purports to be a parent company of Brandywine Auto Sales, Inc. Brandywine Auto Sales, Inc. is the holder of the Maryland dealer tag. The protest was twice denied by the DOT Commercial Vehicle Review Board before the dispute was referred to the Division of Administrative Hearings. Jack Pelham is Bureau Chief of the Division of Motor Vehicles of the Florida Department of Highway Safety and Motor Vehicles. In his official capacity, Mr. Pelham is responsible, in part, for oversight of motor vehicle registration in the state of Florida. According to Mr. Pelham's testimony, his agency considers a dealer tag to be sufficient to permit the hauling of automobiles and trucks, but insufficient to authorize hauling heavy equipment such as a grade-all, as was the case here. Based on his agency's interpretation of the reciprocity provisions of Chapter 320 F.S., Mr. Pelham also testified that the Division of Motor Vehicles would still consider Respondent's Maryland dealer tag used for hauling the grade-all in this case to be sufficient compliance with Florida law so as to avoid a fine if there were any competent substantial evidence that Maryland, the state which issued the dealer tag, used its dealer tags to permit the hauling of heavy machinery within its own borders. There was no affirmative demonstration that Maryland's dealer tags permit such heavy duty hauling, and all hearsay evidence admissible for consideration pursuant to Section 120.58(1) F.S. suggests contrariwise.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commercial Vehicle Review Board of the Department of Transportation enter a final order ratifying the correctness of the imposition of the $1,700.00 fine/fee assessed Brandywine Auto Sales, Inc. DONE and ENTERED this 20th day of August, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1991. APPENDIX The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 5 is rejected as unintelligible. 1-4 and 6-7 are accepted as modified. Respondent's PFOF: None filed COPIES FURNISHED: Rush M. Cox, Jr., Controller Brandywine Companies Routes 301 and 381, Box 68 Brandywine, MD 20613 Charles G. Gardner, Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Case No. 91-3505 APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3505
Conclusions _ This matter came before the Department for entry of a Final Order pursuant to an order closing the file at the Division of Administrative Hearings. The record reflects that the parties have settled their dispute and entered into a Settlement Stipulation. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: 1. Respondent shall pay a civil fine of $5,000.00. Payment shall be made in the form of a certified cashier’s check payable to The Department of Highway Safety and Motor Vehicles and delivered to the Division of Motor Vehicles, Bureau of Field Operations, Region IV Office, at 1354 South Woodland Boulevard, Deland, Florida, 32720. Payment shall be delivered as set out herein within thirty (30) days of the entry of this final order by the Division of Motor Vehicles approving this settlement. Jan 2? 2010 11:57 DHSMY LEGAL TLH Fax: 850-617-5112 Jan 2? 2010 11:56am 002/009 2. Respondent agreed to voluntarily surrender its motor vehicle dealer license within thirty (30) days of the entry of this final order by the Division of Motor Vehicles approving the settlement. 3. Respondent expressly and affirmatively agreed that if it fails to timely pay the fine or to surrender its license as set forth herein the Petitioner will revoke its license without prior notice. Respondent further expressly and affirmatively waives its ability to challenge or appeal such revocation by any means in any forum whatsoever. 4. Florida Luxury Coach, LLC, may file an application for a motor vehicle dealer license pursuant to section 320.27, Florida Statutes. If Florida Luxury Coach, LLC, does apply, the: following conditions will apply: (a) The Petitioner will not rely on the violations alleged in the administrative complaint in this matter to deny the application or otherwise hold such violations against Florida Luxury Coach, LLC. (b) _—_- Victoria L. Scott will be the sole manager/member of Florida Luxury Coach, LLC. (c) Lon Neuville may be employed by Florida Luxury Coach, LLC, solely in a sales capacity. : (d) Victoria L. Scott and Florida Luxury Coach, LLC, expressly and affirmatively agree that no motor vehicle dealer license will be issued to it until the civil fine agreed to herein is paid and until the Respondent surrenders its motor vehicle dealer license. (e) Florida Luxury Coach, LLC, must meet the normal qualifications imposed by statute and administrative rule for issuance of a motor vehicle dealer license. (63) Failure to abide by the conditions of this agreement will be grounds for denial. or revocation of a motor vehicle dealer license to Florida Luxury Coach, LLC and Victoria L. Scott. 5. Victoria L. Scott signed the agreement individually, as a member of the Respondent and as a member of Florida Luxury Coach, LLC. 6. Each party shall bear its own costs and attomey fees in this matter. DHSMV LEGAL TLH Fax: 850-617-5112 Jan 2? 2010 11:56am P003/009 7. The undersigned warrant that they entered into this agreement freely and voluntarily and are doing so under advice of legal counsel. They further warrant that they have the full authority of their respective parties to enter into the agreement and to bind the parties to its terms. 8. Each party will bear its own costs and attorney fees. It is further ORDERED that the Settlement Stipulation of Petitioner and Respondent is adopted and incorporated into this Final Order f the Department in accordance with its terms. DONE AND.ORDERED this 2b ay of January, 2010, in Tallahassee, Leon County, Florida. Copies furnished: Michael J. Alderman, Esquire Senior Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kixkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 Peter N. Hill, Esquire Wolff, Hill, McFarlin & Herron, P.A. 1851 West Colonial Drive Orlando, Florida 32804 A A. FORD, Directo Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkanan Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this day of January, 2010. Jan 2? 2010 OHSMV LEGAL TLH Fax: 850-617-5112 J.D. Parish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 William Camper Hearing Officer Division of Motor Vehicles Julie Gentry Chief, Bureau of Field Operations Nalint Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 11:5? Jan 27 2010 11:57am 004/009
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Jeff B. Clark, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon the Respondent’s Notice of Voluntary Dismissal, filed on August 05, 2010. Accordingly, it is hereby ORDERED that the Franchise Agreement between Nissan Diesel America, Inc. and American Import Car Sales, Inc. d/b/a Jumbo Auto and Truck Plaza of Fort Pierce is terminated. Filed August 20, 2010 1:15 PM Division of Administrative Hearings. DONE AND ORDERED this J? = day of August, 2010, in Tallahassee, Leon County, Florida. CARL A. FORD, Direct6r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this_F2#hday of August, 2010. . . Ni , Dealer Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF: vig Copies furnished: John W. Forehand, Esquire Kurkin Forehand Brandes LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 Matthew Porter Julian, Esquire Baker & Hostetler LLP 200 South Orange Avenue, Suite 2300 Orlando, Florida 32803 David R. Jarrett, Esquire Baker & Hostetler LLP 1000 Louisiana Avenue, Suite 2000 Houston, Texas 77002 Jeff B. Clark Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
The Issue Whether the registration fees for two automobiles leased by Petitioner should be based on the vehicles being classified as "automobiles for private use" as contended by Petitioner or whether the registration should be based on the vehicles being classified as "motor vehicles for hire" as contended by Respondent.
Findings Of Fact Petitioner is in the insurance business. In connection with that business, he leases two motor vehicles from World Omni Leasing Company. Petitioner pays to World Omni Leasing a monthly fee for the use of the two vehicles. Petitioner and his wife uses these two vehicles for business and personal purposes. Petitioner and his wife are the sole operators of these two vehicles. The registration fee for each automobile was based on the automobile being classified as a "for-hire vehicle" as that term is defined by Section 320.01(15)(a), Florida Statutes. Petitioner contends that the registration for each vehicle should be based on each vehicle being classified as a "private use" vehicle as defined by Section 320.01(14), Florida Statutes. The registration fee for each automobile under the "for-hire" classification was higher than the registration fee would have been under the "private use" classification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that adopts the findings of fact and conclusions of law contained herein and which sustains the registration fees that have been charged for the two subject vehicles. DONE AND ENTERED this 6th day of September, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of September, 1994. COPIES FURNISHED: Mr. David Youner Post Office Box 450580 Sunrise, Florida 33345 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 Tallahassee, Florida 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
