Findings Of Fact The Parties H. B. Walker, Inc. is in the business of demolition, excavation and land clearing. The company transports heavy equipment to and from job sites and transports debris from job sites and is a commercial motor carrier. The company maintains a terminal for its motor vehicles at 1913 Bruton Boulevard, Orlando, Florida. All commercial motor carriers operating over the public highways in Florida are subject to certain federal regulations governing driver and vehicle safety and record-keeping. Those federal regulations are adopted by reference in the Florida Statutes, which statutes are amended from time to time to address a later version of the federal regulations. The DOT has the authority and responsibility to enforce those safety and record-keeping requirements, which it does, in part, through terminal audits, sometimes called "compliance reviews". The Process On April 18, 1995, after conferring with his supervisor, Officer Terron Lindsey, a seasoned agency motor carrier compliance officer, visited H. B. Walker's terminal and conducted a review of Walker's records. As a result of the review, Officer Lindsey found multiple violations of the record-keeping requirements of 49 CFR, parts 391 and 396. He advised Walker's personnel that he would return in 60 - 90 days and no penalty would be imposed if the violations were corrected. On a follow-up audit on July 12 and 13, 1995, Officer Lindsey found that some, but not all corrections were made. On August 1, 1995, the agency issued to H. B. Walker a Safety Report and Field Receipt stating the violations and citations to the federal rules and assessing penalties in the total amount of $4,000. Officer Lindsey delivered the Safety Report and Field Receipt to Walker's terminal and was told that the penalty would not be paid. Walker did not pay the $4,000, but protested the agency's findings to the Commercial Motor Carrier Board (Board). By 1995 the DOT had some brief experience with conducting terminal audits and assessing penalties for record- keeping violations, but this was the first time that a motor carrier had refused to pay the penalty prior to presenting its protest to the Board. Captain E. A. Brown, Officer Lindsey's supervisor, called the Tallahassee headquarters of DOT's motor carrier compliance office and the DOT's legal office to find out how to proceed. As motor carriers are aware, DOT exercises authority in road-side safety inspections to require immediate payment of any penalty or to impound the vehicle when a compliance officer issues a citation. Based on DOT's existing rules, Chapter 18 of the Motor Carrier Compliance Manual and experience with road-side safety enforcement, Colonel McPherson advised Captain Brown that the agency had authority to impound an H. B. Walker vehicle. After receiving directions from his headquarters, Captain Brown wrote letters to H. B. Walker and orally informed Walker's employee, John Valois, that if the penalty were not paid, a vehicle would be held, consistent with past enforcement actions on non-payment of penalties. On August 28, 1995, at the direction of Captain Brown, Officer Rick Hunter detained one of Walker's vehicles and impounded it at a DOT maintenance yard. In the meantime, after the Board received H. B. Walker's request for a hearing on the violations, the Board's Executive Secretary, Elyse Kennedy, telephoned Walker's counsel and told him that the Board could not hear his case until the penalties were paid, or a bond was posted. Later, after confirming with DOT legal staff, Ms. Kennedy sent a letter advising Walker's counsel that the Board could schedule and hear the case, as the impoundment of a vehicle was equivalent to payment of the penalties or the bond. H. B. Walker's case was scheduled with consultation with Walker's attorney. On the appointed date, when no representative from H. B. Walker appeared, the Board considered written material submitted by Walker's attorney and testimony from Officer Lindsey. The Board notified H. B. Walker of its denial of relief in a letter dated September 15, 199[5]. The letter states in pertinent part: Dear Sir: Pursuant to Section 316.545, Florida Statutes, the Commercial Motor Vehicle Review Board at its meeting of July 13, 199[5], carefully reviewed all of the information placed before it and determined that a refund was not appropriate in this case for the following reason. After hearing testimony of Officer Lindsey and Captain E. A. Brown, the Board felt that H. B. Walker, Inc. was not in compliance with CFR 391.51; CFR 391.43; CFR 391.103 and CFR 396.3. Pursuant to Rule 14A-1.012, Florida Administrative Code, you are entitled to request a rehearing in this matter by filing such a request with the Executive Secretary within ten (10) days of the receipt of this letter. Pursuant to Chapter 120, Florida Statutes, you have the right to either a formal or an informal hearing. A formal hearing will be granted where disputed issues of material fact exist; in other words, where you disagree with the specific facts contained in this letter upon which the Commercial Motor Vehicle Review Board bases its intent to deny your request for refund. All requests for either type of hearing must be in writing. * * * You are hereby notified that the conclusion contained in this letter shall become final with 21 days of receipt of this letter, unless, you file a written request for an informal or formal Administrative hearing pursuant to Section 120.57, Florida Statutes, with the Clerk of Agency Proceedings within 21 days. * * * Walker's timely request for a formal hearing tolled the Board's conclusion. The 1995 Rules In 1995, at the time of the H. B. Walker terminal audit and ensuing Board meeting, rules 14A-1.004 and 14A-1.007, Florida Administrative Code, provided, in pertinent part: 14A-1.004 Meetings . . . Only penalties which have been paid or for which a Section 316.545 bond has been posted, will be considered by the Review Board. 14A-1.007 Timely Written Request for Meeting Any person who is aggrieved by the imposition of a civil penalty imposed upon the provisions of section 316.545 or 316.3025, Florida Statutes, after payment of the penalty, or posting a section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office in writing within 60 days of the date of the penalty notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested . . . . At the relevant period, rules 14-87.011(1) and 14-87.002 provided, in pertinent part: 14-87.011 Definitions * * * "Citation" means: A Load Report and Field Receipt issued to the owner or driver of a commercial motor vehicle for violation of weight and vehicle registration laws: or A Safety Report and Field Receipt issued to the owner or driver of a commercial motor vehicle for violation of safety laws and regulations and permit violations; or The penalty portion of an I. R. P. Trip Permit & Temporary Fuel Use Permit issued to the owner or driver of a commercial motor vehicle in violation of the fuel use tax requirements contained in Chapter 207, Florida Statutes. 14-87.002 Penalties and Fees Due Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. . . The 1996 Amendments On June 7, 1996, DOT published notices of rule-making, proposing to amend various provisions of rule chapters 14-87, 14-108 and 14A-1. On July 16, 1996, the agency filed the amendments to Chapter 14A-1 for adoption, and those amendments became effective August 5, 1996. The amendments to Chapters 14-87 and 14-108, Florida Administrative Code, became effective in September 1996. The cumulative effect of these amendments is to distinguish between the penalty process for road violations and the process for violations found during a terminal audit/compliance review. The amendments provide that a commercial motor carrier who has been assessed penalties for violations found during a terminal audit may obtain a Review Board hearing prior to payment or posting a bond. The amendments also distinguish between a "notice of non- compliance" issued after a terminal audit to advise the carrier of violations and the penalties that will be assessed if the violations are not corrected, and a "notice of violation" which identifies the violations and assesses penalties. DOT's amendments to chapter 14-87, Florida Administrative Code, are, in relevant part, as follows: (Underlined material has been added, material struck through has been deleted.) 14-87.0011 Definitions * * * "Penalty" means a monetary amount prescribed by statute or Department rule as a civil penalty to be assessed administratively for a violation of a commercial motor vehicle law pursuant to the issuance of a citation or a notice of violation. * * * "Notice of Violation" means a notice of violation as defined by Rule 14-108.002(5). * * * 14-87.002 Penalties and Fees Due; Detaining and Impounding Motor Vehicles When Citation or Permit Issued Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. Penalties due under chapter 14-108 are due in accordance rule 14-108.004. All penalties and fees not guaranteed by a Surety Bond must be paid to the officer or inspector issuing the citation or permit or detaining the vehicle for nonpayment of penalties prescribed under rule 14-108.005 prior to further operation of the affected commercial motor vehicle on the roads of this State. Payment may be in cash, by cashier's check or by money order. In the event that payment is not made when payment is due, the motor vehicle will be impounded in accordance with sections 316.3025 or 316.545, Florida Statutes. When a Surety Bond has been properly filed and accepted by the Department, the vehicle will be released upon presenting written evidence of the surety bond to the officer or inspector detaining the vehicle the citation or permit will be issued to the owner or driver of the vehicle, and payment must be remitted to the officer or inspector who issued the citation or permit within ten working days of the release of the vehicle date of issuance. Company checks may be accepted when a proper Surety Bond is on file. In the event that payment is not made within ten working days of release of the vehicle, the Department will take action to recover the penalty amount from the surety bond. Motor vehicles impounded in accordance with this rule will be released upon payment of the penalty or the posting of a bond pursuant to Section 316.545, Florida Statutes, or upon a determination by the Commercial Motor Carrier Review Board to cancel or revoke the penalty or upon the issuance of a Department order setting aside the penalty as the result of a proceeding held pursuant to section 120.57, Florida Statutes. Motor vehicles released as a result of the posting of a bond under section 316.545, Florida Statutes, remain subject to the lien imposed by that statute. The Department's amendments to chapter 14-108, Florida Administrative Code, are, in relevant part, as follows: 14-108.002 Definitions * * * "Notice of Noncompliance" means a notice issued to a motor carrier that advises the motor carrier of violations found during a terminal audit/compliance review and identifies the penalties that will be assessed if the violations are not corrected within 60 days of receipt of the notice. "Notice of Violation" means a written notice which identifies violations of safety laws and regulations found during the conduct of a terminal audit/compliance review and assesses penalties pursuant to these rules. Such a notice will be issued after violations are found and penalties are to be assessed under this Chapter. (5) "Penalty" means a monetary amount prescribed by statute as a civil penalty to be assessed administratively for violation(s) of safety laws and regulations found during the conduct of a terminal audit/compliance review. (6) "Terminal Audit" or "Compliance Review" means an onsite investigation at a motor carrier's terminal or office of property carrier or passenger carrier records such a driver's hours of service, maintenance and inspection, driver qualification, commercial drivers license requirements, financial responsibility, accidents and other safety and business records to determine compliance with the safety laws and regulation. The investiga- tion will compliance review may result in the initiation of an enforcement action to include the assessment of the applicable penalty(ies) prescribed by statute and this rule chapter. 14-108.003 Applicability; Compliance Required * * * Any person or motor carrier who operates or causes or permits nonpublic- sector buses to be operated on any road, street, or highway open to travel by the public in the transportation of passengers shall be in compliance with the applicable safety laws and regulations contained in section 316.70, Florida Statutes, and Title 49 C.F.R. Parts 382, 385 and 390 through 397 301, 393, 394 and 396. Any person or motor carrier found to be in violation of these rules during the conduct of a terminal audit or compliance review shall be subject to the penalties herein described. The penalties prescribed by rule 14-108.105 will be waived and a notice of violation will not be issued if, as a result of the first terminal audit or compliance review conducted of a Motor Carrier, the Motor Carrier corrects the described violations within 60 days after receipt of a written notice of noncompliance. Penalties for the following violations will not be waived under the above provision, even if they are found during the first terminal audit or compliance review and are corrected immediately. Failure to comply with controlled substance testing requirements Exceeding driver hours of service. Violations involving hazardous materials. Lack of valid commercial driver's licenses, including revoked, suspended or cancelled licenses. 14-108.004 Administration: Enforcement. All penalties imposed and collected in accordance with these rules shall be paid to the treasurer, who shall credit the total amount collected to the State Trans- portation Trust Fund in accordance with section 316.3025(5)(b), Florida Statutes. Penalties assessed as a result of a terminal audit are due and shall be paid no later than ten working days after receipt of the notice of violation, unless a timely appli- cation is made to the Commercial Motor Vehicle Review Board under rule 14A-1.007, in which case the penalty (or the remaining part thereof) is due and shall be paid no later than ten working days after receipt of a written decision by the Review Board sustaining the penalty in whole or in part. Whenever any person or motor carrier violates the provisions of these rules and becomes indebted to the State because of such violation(s) and refuses to pay the appropriate penalty, the penalty becomes a lien upon the property including the motor vehicles of such person or motor carrier and may be foreclosed by the State in a civil action in any court of this state as prescribed by section 316.3025(4), Florida Statutes. Motor vehicles of the person or motor carrier will be detained and impounded for nonpayment in accordance with Rule 14-87.002. The adopted amendments to Chapter 14A-1, Florida Administrative Code, are, in relevant part, as follows: 14A-1.004 Meetings The Review Board shall sit as an admin- istrative body in equity to consider testimony or written documents in mitigation, extenuation, modification, cancellation, revocation, or maintenance of any penalty or penalties imposed pursuant to 316.540, 316.545, or 316.3025, Florida Statutes. Only penalties which have been paid or for which a section 316.545 bond has been posted, will be considered by the Review Board. However, this provision shall not prevent the owner of a motor vehicle that has been impounded for nonpayment from receiving a Review Board hearing. Further, as provided in Rule 14-108.004, a motor carrier may obtain a Review Board hearing on penalties assessed as a result of a terminal audit prior to payment or posting of a bond. Review Board meetings may be scheduled as often as determined necessary, based on a sufficient number of penalties being avail- able for review to justify the expense of hold a meeting. The Review Board shall meet not less than six times per year. Location of meetings shall be determined by the Review Board. Upon timely written request, cases involving Florida based persons will be scheduled at the next meeting held in their geographic area. However, cases involving requests for Review Board conside- ration of unpaid penalties imposed for violations found during a terminal audit will be scheduled for the next meeting regardless of location. Upon timely written request, cases involving non-Florida based persons will be scheduled at the next meeting of the Review Board. Persons may request the scheduling of their case at a specific city at which the Review Board meets. Such requests must be in writing to the Commercial Motor Vehicle Review Board, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0450. * * * 14A-1.007 Timely Written Request for Meeting Any person who is aggrieved by the imposition of a civil penalty imposed upon the pro- visions of Section 316.545 or 316.3025, Florida Statutes upon compliance with Rule 14A-1.004, after payment of the penalty, or posting a Section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office in writing within 60 days of the date of the Penalty Notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested. The request shall set forth in detail the basis of the protest and all matters to be considered so that the Review Board can be prepared to discuss the issue at the meeting if the protestor does not appear. The request must be received within 60 days. A written request for Review Board consideration of a penalty imposed for violations found during a terminal audit must be submitted and received within ten working days after receipt of the notice of violation in order to be considered timely and such written request must be submitted via hand-delivery or certified mail. 14A-1.008 Appearances Those persons, firms or corporations who have been assessed a penalty for violations of Section 316.540, 316.545, or 316.3025, Florida Statutes, and have complied with the requirements of Rules 14A-1.004 and 14A-1.007 either have paid the penalty or posted a Section 316.545, Florida Statutes, bond shall appear in person, through an authorized representative or by legal counsel. Each person shall be given ample time to explain the reasons for seeking relief. The Review Board, at its discretion, may inquire into any testimony presented at the meeting or written statements presented. Testimony also may be received from the agency that imposed the penalty. Although Mr. Walker testified that he never received notice of rule- making to amend Chapter 14A-1, Florida Administrative Code, he did not present evidence that he requested notice. Nor did he argue that the amendments were otherwise invalid. Chapter 18, Motor Carrier Compliance Operations Manual As stated in its first paragraph, Chapter 18, "Collection of Civil Penalties", within the Motor Carrier Compliance Operations Manual, the purpose of Chapter 18 is, to establish a uniform procedure for the collection of overweight penalties and other commercial vehicle penalties assessed pursuant to Florida Statutes and, Department Rules. (DOT Exhibit Number13) Like the rules of DOT in 1995, the Chapter 18 procedures provided for immediate collection of a penalty, or posting a bond or impoundment of a vehicle at the time enforcement action is taken. Although agency personnel invoked Chapter 18 as part of their basis for seeking immediate payment by H. B. Walker, the provisions of the Chapter nowhere specifically mention penalties assessed as the result of terminal audits. On April 15, 1996, the agency issued Enforcement Bulletin 18-001, to be inserted in Chapter 18 describing procedures for imposition and collection of civil penalties associated with terminal audits. Those procedures are the same as the procedures described in the rule amendments addressed in paragraphs 18 through 20, above.
Findings Of Fact On September 4, 1979, the Department of State levied a $200 civil fine against Weaver and Automobile Recovery by its letter of that date. As of that date, the Petitioner was not licensed by the Department of State under Chapter 493, Florida Statutes. The $200 fine was paid, and a formal hearing was requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the fine be set aside and the $200 be repaid to the Petitioners. This recommended in no way constitutes a ruling or finding on the underlying grounds upon which the fine was assessed. DONE AND ENTERED this 13th day of February 1980 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. John M. Weaver Automobile Recovery Bureau of Florida, Inc. Post Office Box 18452 Tampa, Florida 33679 W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be granted an Independent Motor Vehicle Dealer License, pursuant to Section 320.27, Florida Statutes (2008).
Findings Of Fact The Department is an agency of the State, charged with regulating the business of buying, selling or dealing in motor vehicles under § 320.27, Florida Statutes (2007). The Respondent applied for a license as an Independent Motor Vehicle Dealer. The application was signed by Harold Gillis. Mr. Gillis is the Respondent's president and sole corporate officer. The Resident Agent is Andrew Kiswani. Mr. Kiswani is also known as Alex Kiswani and Andy Kiswani. On the insurance certificate filed with the license application, Mr. Kiswani is shown as one of the named insureds. Named insureds on this type of insurance certificate are typically the dealer principals, the people actually operating the dealership. Mr. Kiswani is a convicted felon. He was convicted twice for theft of state funds. He has thirteen convictions of failure to file state tax returns and seven convictions of issuance of worthless checks to the Department of Revenue. Mr. Kiswani previously was licensed as a Motor Vehicle Dealer, as President of Ocala Auto and Truck Sales, Inc. That license expired on April 30, 2008. On May 19, 2008, Mr. Gillis and Mr. Kiswani displayed vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed location. Both of them were warned by Department employees to cease the unlicensed activity. On June 2, 2008, Mr. Gillis and Mr. Kiswani again displayed motor vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed premises. They were again warned by Department employees to cease the unlicensed activity. On June 11, 2008, Ocala Auto and Truck Sales, Inc. sold a car to James Reed. That seller failed to apply for a Certificate of Title on behalf of Mr. Reed and failed to pay off a lien on the vehicle, within 10 days of acquisition of the vehicle. Ocala Auto and Truck Sales, Inc., sold a vehicle to Wesley Leon Linsey. On February 7, 2007, the seller failed to apply for a Certificate of Title and registration within 30 days of delivery of the vehicle. On December 28, 2007, Ocala Auto and Truck Sales, Inc. entered into a contract with Darrell Lenamond for the consignment sale of a motor vehicle owned by Mr.Lenamond. Ocala Auto and Truck Sales, Inc. sold the vehicle and never paid Mr. Lenamond the money due him from the sale. Mr. Kiswani operated Mr. Gillis's previous dealership. He would be actively involved in operating the dealership for which the license is sought, by the Respondent Corporation, as its Resident Agent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED: That the Florida Department of Highway Safety and Motor Vehicles enter a Final Order denying the Respondent's license application. DONE AND ENTERED this 31st day of July, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Harold Gillis Certified Motors, Inc. 2895 South Pine Avenue Ocala, Florida 34471
Conclusions This matter came on for determination by the Department upon submission of an Order Relinquishing Jurisdiction and Closing File by William F. Quattlebaum, an Administrative Law Judge of the Division of Administrative Hearings, and the Notice of Settlement And Motion to Relinquish Jurisdiction, copies of which are attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File, and thel Notice of Settlement And Motion to Relinquish Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that the parties shall carry out the terms of the Settlement Stipulation. The Department acknowledges that on December 7, 2010, Respondent paid the civil fine of $1,000 to the Department. Filed January 14, 2011 QJ Division of Administrative Hearings DONE AND ORDERED this __@3 _ day of January 2011| at Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B439 Tallahassee, Florida 32399-0600 Sandra C. Lambert, ck Director Filed in the official records of the Division of Motor Vehicles this day_pf January 2011. Nalini naval, Dealer iministrator’ 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 i any other district court of appeal of this state in an appellate district where a party resides. In des to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rule 9.110, Rules|of Appellate Procedure. SCL:jde Copies furnished: Gary Konopka Regional Administrator Dealer License Section John H. Trevena, Esquire 801 West Bay Drive, Suite 509 Largo, Florida 33770
The Issue The issue in this case is whether the Respondent correctly assessed a fuel use tax or civil penalty against Petitioner for violations of Sections 207.004, and 316.545, Florida Statutes, and Chapter 320, Florida Statutes, for operating a commercial vehicle on a highway in the State of Florida without vehicle registration and fuel tax registration to operate in the state.
Findings Of Fact On June 1, 1991, a commercial vehicle, operated by Unruh Fab, Inc., was stopped on I-10 in Escambia County, Florida at a Department of Transportation weight station. The weight station is the last exit in Florida for westbound vehicles and is the first exit in Florida for eastbound vehicles. The vehicle was not displaying a fuel use tax device, as required by Section 207.004, Florida Statutes, for its interstate operations and was not registered to operate in the State of Florida as required by Chapter 320, Florida Statutes. The driver did not present any fuel use tax registration documentation or International Registration Plan (IRP) registration as an interstate apportioned vehicle.1/ The Department of Transportation Inspector issued a temporary fuel use permit and an I.R.P. trip permit to Respondent to allow the vehicle to proceed on its way. The total cost of the temporary permits was $75.00. The owner of the vehicle was assessed a $50.00 civil penalty for violation of Chapter 207, Florida Statutes. See, Section 316.545(4), Florida Statutes. Additionally, while the truck was at the weight station, the Department of Transportation Inspector weighed the vehicle. The truck weighed 42,920 pounds. Under Section 316.545, Florida Statutes, Petitioner's vehicle's weight could not exceed 35,000 pounds. Petitioner's vehicle exceeded the 35,000 pound legal weight by 7,920 pounds. A penalty of 5 cents a pound was assessed for each pound over the legal weight resulting in a penalty of $396.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finding that the fee and penalty totaling $521.00 was correctly assessed Unrah Fab, Inc., by the Department of Transportation, under provisions of Sections 207.004 and 316.545, Florida Statutes, and Chapter 320, Florida Statutes. DONE and ENTERED this 1st day of June, 1992, in Tallahassee, Florida. DIANE CLEAVINGER, 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 1st day of June, 1992.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by James H. Peterson, III, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Parties’ Settlement Stipulation and Motion to Relinquish Jurisdiction, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 29, 2013 9:29 AM Division of Administrative Hearings DONE AND ORDERED this ag day of May, 2013, in Tallahassee, Leon County, Florida. Buréau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this at. day of May, 2013. Vows te Dealer Kicense Administra" ~ NOTICE OF APPEAL RIGHTS ).. 4-. > Nalini Vinzyak, Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: Micahel Khanjahanbakhsh, President Car Store of Altamonte, Inc. 425 Devon Place Heathrow, Florida 32746 Michael J. Alderman, Esquire Department of Highway Safety 2900 Apalachee Parkway, MS61 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 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS? Fr (™ fer Bf 0° MAY 20 2013 Daot. of Higitsay Sa: Orcs DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, Case No.: 13-1185 v. CAR STORE OF ALTAMONTE, INC., Respondent. / SETTLEMENT STIPULATION AND MOTION TO RELINQUISH JURISDICTION Petitioner, Department of Highway Safety and Motor Vehicles, and Respondent, Car Store of Altamonte, Inc., stipulate and agree to a settlement of this matter and move for relinquishment of jurisdiction for the purpose of entering a Final Order of the Department incorporating this Settlement Stipulation in the above-styled matter, as follows: 1. Respondent agrees to pay an administrative fine of five hundred dollars ($500). 2. If Respondent pays the amount specified in paragraph one above within the specified time, the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay the amount specified in paragraph one above on or before the date provided in the Final Order, on the day following the payment date specified, Respondent’s motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. 3. If after suspension Respondent pays the amount specified in paragraph one above within 30 days following the date of suspension, its motor vehicle dealer license will : 3 a : : : a a aH ro 7 S ‘ : : : i “ & = . . : : x 7 . . . a “ immediately be reinstated without further penalties or sanctions. However, if Respondent fails to pay the amount due by the 30" day following the date of suspension, on the 31 day following the date of suspension Respondent’s motor vehicle dealer license shall be revoked by the Department without further notice. 4. If the Department suspends or revokes Respondent’s motor vehicle dealer license for non-payment as specified in paragraphs two and three above, said suspension or revocation shall be without recourse to the Respondent and Respondent hereby expressly waives any right to appeal or otherwise contest the suspension and revocation. 5. It is expressly understood that this Settlement Stipulation has no force and effect until the Department enters a Final Order adopting same. 6. Respondent and the Department fully understand that this Settlement Stipulation, and the subsequent Final Order incorporating same, will not in any way preclude additional proceedings by the Department against Respondent for acts or omissions not specifically detailed in the Administrative Complaint filed in this matter. 7. Respondent and the Department expressly waive all further procedural steps and Respondent expressly waives all rights to seek judicial review of or otherwise challenge or contest the validity of this Settlement Stipulation and the Final Order of the Department. 8. Respondent waives the right to seek any attorney’s fees or costs from the Department in connection with this administrative proceeding. WHEREFORE, the parties move the Administrative Law Judge for the entry of an order returning jurisdiction of this matter to the Department. NYS o Signed this 22 214. of, 2013 Signed this 16 day of Nan , 2013. Vudu BAELLLEAE Mehaal FT. levine Michael Khanjahanbakhsh, President AssistantGeneral Counsel Car Store of Altamonte, Inc. Department of Highway Safety 1380 East Altamonte Drive and Motor Vehicles Altamonte Springs, Florida 32701 2900 Apalachee Parkway Tallahassee, Florida, 32399 Attorney for Petitioner w ue. STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF MOTORIST SERVICES, ) ) ) ) Petitioner, ) ) vs. ) Case No. 13-1185 ) CAR STORE OF ALTAMONTE, INC., ) ) Respondent. ) ) ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the Settlement Stipulation and Motion to Relinquish Jurisdiction, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 7, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. Witton Fo Quatteban WILLIAM F. QUATTLEBAUM 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 21st 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 Dennis S. Valente, Esquire Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399 dennisvalente@flhsmv.gov Michael Khanjahanbakhsh Car Store of Altamonte, Inc. 425 Devon Place Heathrow, Florida 32746
The Issue The primary issues for determination are whether Respondent committed a myriad of violations of Section 320.27, Florida Statutes, which provides certain requirements applicable to motor vehicle dealers. The violations alleged to have been committed by Respondent are inclusive of failures to display a consumer sales window form, to keep certain records of purchases and sales, to keep proper records of temporary tags, and not possessing required proper proof of ownership of two vehicles. In the event that Respondent committed these violations, an additional issue is what administrative penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the business of buying, selling, or dealing in motor vehicles or offering or displaying motor vehicles for sale. Respondent is, and has been at all times material hereto, a licensed independent motor vehicle dealer in Florida, having been issued license number VI-13051. Petitioner issued the license based upon an application signed by Sudarshan Kuthiala, as President. Respondent's address of record is 5895 St. Augustine Road, Suite No. 8, Jacksonville, Florida 32207. Respondent's president is Sudarshan Kuthiala. On or about March 12, 2004, Petitioner's compliance examiner conducted an annual records inspection of Respondent's dealership. The purpose of that inspection was to determine whether the dealership was complying with statutory and rule requirements. Arrangements to conduct the inspection were made at least a week ahead of time. At the time of the March 12, 2004 inspection, the compliance examiner found that Respondent did not have the "Buyer's Guide" required by federal law and known as a “consumer sales window form,” properly displayed on a vehicle, a 1995 Nissan, Vehicle Identification Number (VIN) 1N6SD16S25C386012, being offered for sale by Respondent. Also, during the March 12, 2004 inspection, the compliance examiner reviewed five purchases and sales of motor vehicles made by Respondent. The examiner discovered that records of two of the vehicles involved did not contain any documentation of the method or proof of purchase or the required odometer disclosure statement at time of acquisition. Another of the vehicles did not have the odometer disclosure statement upon its disposition. An examination during the March 12, 2004 inspection of Respondent's temporary tag log found that the log was incomplete. Respondent's temporary tag log did not include the name and address of the person to whom a temporary tag for a vehicle had been assigned. A follow-up inspection of Respondent's dealership was conducted on June 23, 2004. An appointment for that inspection was made at least one week ahead of time. In the course of that June 23, 2004 inspection, Petitioner's examiner discovered Respondent did not display the required "Buyer's Guide" or “consumer sales window form” required by federal law on a 1992 Mercury automobile with VIN 1MEPM6043NH616615, being offered by Respondent for sale. Further, Respondent's records did not contain the odometer disclosure statement of that vehicle when it was acquired. Additionally, Respondent did not have a title or other proof of ownership of the 1992 Mercury automobile. During the June 23, 2004 inspection, Petitioner's examiner also discovered that records of three purchases and sales of motor vehicles made by Respondent were deficient. Records for two of the vehicles did not have the method or proof of purchase or odometer disclosure statement upon acquisition. Records for one of the vehicles did not have the required odometer disclosure statement upon disposition of the vehicle. The June 23, 2004 inspection also revealed that Respondent's temporary tag log was incomplete. The log did not reveal the name and address of a person to whom a temporary tag was issued or the vehicle identification number of the vehicle for which the temporary tag was issued. Following both of the inspections recounted above, neither Sudarshan Kuthiala nor anyone else on behalf of Respondent offered to provide the missing records or account for them. In the course of attendance at training school for dealers, Sudarshan Kuthiala was informed of the required forms and the process for their preparation. Also, Respondent's records have been inspected in the past and recordkeeping requirements further explained to Kuthiala.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Petitioner enter a final order revoking Respondent’s license. DONE AND ENTERED this 18th day of August, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2005. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399 Sudarshan K. Kuthiala 2961 Bernice Drive Jacksonville, Florida 32207 Fred O. Dickinson, III, Executive Director Department of Highway Safety and Motor Vehicle Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicle Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
