The Issue The issue to be resolved in this proceeding concerns whether the Respondent, D & S Motors and David R. Blevins, Owner, engaged in the business of operating a recovery agency without appropriate licensure and whether the Respondent employed a person engaged in the repossession business without that employed person being appropriately licensed, pursuant to the pertinent provisions of Chapter 493, Florida Statutes.
Findings Of Fact The subject matter of the dispute at issue arose when Daniel F. Lee, Jr. and the Respondent, David R. Blevins, the owner of D & S Motors, entered into an arrangement whereby Mr. Lee worked for Mr. Blevins in his used car sales business; obtaining cars for sale to customers, repairing and otherwise preparing such cars for sale, and selling cars for the Respondent's dealership. Apparently Mr. Lee believed, at least initially, that he had entered into a partnership arrangement with the Respondent to operate D & S Motors. Mr. Lee, however, was paid like an employee during the course of their business relationship and considered himself to be working for Mr. Blevins. Their arrangement was an employer/employee relationship based upon the preponderance of the evidence. Mr. Lee's duties included buying and selling cars, preparing them for sale, and driving the company tow truck. He also engaged in attendance at auctions at which cars were sold or others were purchased for resale. Mr. Lee also performed physical repossessions of automobiles between April and December of 1991. D & S Motors did five or six repossessions for Commercial Credit of Pensacola and would normally charge $125.00 per automobile repossession. Mr. Blevins was aware that Mr. Lee was repossessing automobiles with his company's tow truck because he would give Mr. Lee telephone messages from Commercial Credit of Pensacola when a repossession needed to be done, dispatching Mr. Lee to perform that task. After being paid by Commercial Credit with checks made payable to D & S Motors, Mr. Lee would normally give custody of such checks to Mr. Blevins, who would then split the funds they represented three ways. One third of the funds went to Mr. Blevins' company, one third was paid to Mr. Lee, and one third was applied toward maintenance of the tow truck. On three or four occasions, Mr. Blevins actually rode with Mr. Lee in the tow truck performing repossession attempts. On these occasions, they made only one successful recovery of a vehicle, however. The repossessed vehicles were normally kept at the D & S Motors' dealership lot, and Mr. Blevins sometimes would help perform the inventory of the personal property in the vehicles. On July 31, 1991, Commercial Credit of Pensacola issued a check for $275.00 payable to D & S Motors for the repossession of three vehicles. On August 30, 1991, Commercial Credit of Pensacola issued a check for $100.00 made payable to D & S Motors for one repossession. On December 10, 1991, Commercial Credit of Pensacola issued a check for $125.00 made payable to Danny Lee for one repossession. Keith Prine, the Branch Manager for Commercial Credit of Pensacola, was given a D & S Motors' invoice or receipt signed by Mr. Lee. In January of 1992, Mr. Blevins wrote Commercial Credit of Pensacola concerning a wrecked 1986 Saab automobile, which was then being stored at the D & S Motors' dealership lot. That automobile had been repossessed by Mr. Lee, and Mr. Blevins was aware that Mr. Lee had repossessed that vehicle, at least upon the occasion of its being deposited on the D & S Motors' dealership lot. During the times in question, between April and December of 1991, neither Mr. Blevins nor Mr. Lee held a Class "E" recovery agent license, nor a Class "EE" recovery agent intern license, nor a Class "R" recovery agency license, pursuant to Chapter 493, Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered finding the Respondent in violation of the statutory and rule provisions cited above and that an administrative fine in the amount of $500.00 be imposed in accordance with Rule 1C-3.113(1)(a)2, Florida Administrative Code, and, as to Count II of the Administrative Complaint, that the Respondent be assessed an administrative fine in the amount of $250.00, in accordance with Rule 1C-3.113(1)(a)9, Florida Administrative Code. DONE AND ENTERED this 18th day of December, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 18th day of December, 1992. APPENDIX TO RECOMMENDED ORDER CASE NO. 92-3555 Petitioner's Proposed Findings of Fact 1-10. Accepted. COPIES FURNISHED: The Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, Esq. General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Mr. David R. Blevins D & S Motors 6559 N. Old Palafox Pensacola, FL 32514
Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Respondent Arline Halpin ("Halpin") and Respondent Tony W. Twiddy ("Twiddy") have lived together since some time in 1990 in a residence they own jointly. Twiddy previously held a Class "E" Recovery Agent license issued by the Department that expired on April 14, 1988. Twiddy's attempts to renew that license were denied by the Department. By Final Order dated May 3, 1989, the Department revoked the Class "A" Private Investigative Agency license No. A00-01398 issued to T. S. T. Detective Agency, Inc., a company owned and operated by Twiddy and also revoked the Class "C" Private Investigator license No. C00-00811 issued to Twiddy. In that Final Order, the Department ordered Twiddy to cease conducting regulated activities. In a Final Order dated July 20, 1990, the Department imposed an administrative fine in the amount of $2,000 against Twiddy as a result of a finding that he performed unlicensed repossessions between October 13, 1989, and January 15, 1990, in Broward County, Florida, and because he failed or refused to cooperate with Department investigators in violation of Section 493.319(1)(o), Florida Statutes (1989). Twiddy contends that he did not receive notice that his Class "E" and Class "C" Private Investigator licenses had been revoked until January 7, 1991. The evidence established, however, that in August of 1990 Twiddy was aware of problems with his licensure status. Furthermore, it is clear that Twiddy knew or should have known that he did not have a valid Class "E" or "EE" license from April 14, 1988 to the present. Based upon all of the evidence, it is concluded that, at all times pertinent to this proceeding, Twiddy was aware that he was not licensed to conduct repossessions. Halpin received a Class "C" Private Investigator's license and a Class "E" Recovery Agent license on May 30, 1990. She also received a Class "A" Private Investigative Agency license for A. T. Detective on August 10, 1990. Effective October 1, 1990, the Department began issuing Class "R" Recovery Agency licenses. Prior to October 1990, a recovery agent did not have to work for a licensed agency. A. T. Detective received a Class "R" Recovery Agency license on November 20, 1990. Halpin is the sole shareholder and president of A. T. Detective Agency, Inc. ("A. T. Detective") and A. T. M. Towing, Inc. ("A. T. M."). A. T. Detective is engaged in the business of repossessing automobiles. A. T. Detective employs licensed repossessors to locate and seize cars that were to be repossessed. A. T. M. is engaged in the towing business, including the towing of illegally parked cars and the towing of repossessed cars. Both A. T. Detective and A. T. M. operate out of the same location. Twiddy is the general manager for A. T. M. Twiddy denies any ownership, employment or managerial involvement with A. T. Detective. Twiddy contends that he simply coordinated the towing activities performed by A. T. M. for A. T. Detective. There is no evidence that Twiddy received any direct payments from A. T. Detective or that he was officially an employee of that company. However, the evidence established that he was actively engaged in the management of the company, he was actively involved in the employment decisions, he engaged in skip-tracing on behalf of the company and he directed the employees of both the detective agency and the towing company. In sum, the evidence established that Twiddy, with the knowledge and acquiescence of Halpin, was actively engaged in running the operations of A. T. Detective. While the evidence established that Twiddy directed the activities of some of A. T. Detective's licensed repossessors and that he was present during many of the repossessions, no persuasive or conclusive evidence was presented of any specific repossessions by Twiddy after May 1990 without a licensed repossessor being present. During the course of the hearing, Respondents Halpin and A. T. Detective stipulated that on one occasion per month during the period from August 1990 through December 1992 they failed to maintain a complete and accurate inventory of personal effects or other personal property recovered in the course of repossessions as alleged in Count III of the Administrative Complaint in Case No. 93-1184. Consequently, those Respondents violated Section 493.6404(1), Florida Statutes, on 29 occasions during the time period. Similarly, Respondents Halpin and A. T. Detective conceded that on one occasion per month during that same time period they failed to give written notification to a debtor advising the debtor of the whereabouts of personal effects within five working days of a repossession. Accordingly, those Respondents violated Section 493.6404(2), Florida Statutes, on 29 occasions during the time period.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of State enter a Final Order finding Respondents Arline Halpin and A. T. Detective Agency, Inc., guilty of the violations alleged in Counts I, II, III and IV of the Administrative Complaint issued in Case No. 93-1184, that a fine of $1,000 be imposed for the violations of Counts I and II, a fine of $250 be imposed for the violations of Count III and a fine of $250 be imposed for the violations of Count IV. In addition, the Class "R" Recovery Agency license issued to A. T. Detective Agency should be suspended for six months following which a probationary period of six months should be imposed. Arline Halpin's Class "E" Recovery Agent license should be placed on probation for a period of one year. Count V of the Administrative Complaint should be dismissed. It is further RECOMMENDED that the Department of State enter a Final Order finding Respondent Tony W. Twiddy guilty of the violations alleged in Counts I and II of the Administrative Complaint in Case No. 93-1098, that he be ordered to pay an administrative fine in the amount of $225 for Count I and $750 for Count II and that he be ordered to cease and desist all regulated activities. Count III of the Administrative Complaint should be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of April, 1994. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April 1994. APPENDIX Petitioner's Proposed Findings of Fact: Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 4. Rejected as unnecessary. Rejected as unnecessary. Adopted and pertinent in part in Findings of Fact 5. Rejected as unnecessary. Adopted and pertinent in part in Findings of Fact 11. Adopted and pertinent in part in Findings of Fact 11. Adopted and pertinent in part in Findings of Fact 11. Adopted and pertinent in part in Findings of Fact 11. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Subordinate to Finding of Fact 11. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. [no proposal submitted] Subordinate to Finding of Fact 1. Rejected as unnecessary. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 14. Respondents' Proposed Findings of Fact: Respondents' proposed Findings of Fact and conclusions of law consists of a mixture of argument, proposed factual findings and proposed conclusions of law. No specific rulings are made with respect to Respondents' proposals because separate Findings of Fact have not been identified. COPIES FURNISHED: Henri C. Cawthon Assistant General Counsel Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Myron B. Berman, Esquire Post Office Box 1113 North Miami Beach, Florida 33160 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issue is whether respondent should have an administrative fine levied against him for allegedly performing repossesions without a Class "E" repossessor license.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On May 15, 1990, Charlotte County deputy sheriff Terry Harbes was dispatched to Maple Leaf Estates in response to a "domestic call". Upon arriving at the subdivision, deputy Harbes found a white male, George Guy, lying on the ground in an incoherent state and bleeding from the face. Guy had been assaulted by respondent, Richard Vee Collier. According to Collier's admission at the scene of the incident, Collier was in the process of repossessing Guy's step van when the assault occurred. Collier further acknowleged that he did not hold a repossessor license issued by petitioner, Department of State, Division of Licensing (Division). This latter admission was confirmed by Division records which show that Collier does not hold a repossessor license, a prerequisite to engaging in the trade of repossessing motor vehicles. Testimony of Arthur D. Morgan, former manager of Time Motor Sales in Charlotte Harbor, Florida, established that Collier worked as an independent contractor for Time Motor Sales during the period from March 23, 1990, through May 15, 1990. During that time period, Collier repossessed nine motor vehicles and was paid fifty dollars per vehicle for his services. It may be reasonably inferred from the evidence that such repossessions occurred as a result of the owners' default in payment for such motor vehicles to the lienholder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 493.319(1)(g), Florida Statutes (1989), and that he pay a $1,000 administrative fine within such a time period as is specified in the final order rendered in this matter. DONE and ENTERED this 29th day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of November, 1990. COPIES FURNISHED: Henri C. Cawthon, Esquire Division of Licensing The Capitol, M.S. 4 Tallahassee, FL 32399-0250 Mr. Richard Vee Collier 2204 Alton Road Port Charlotte, FL 33952
The Issue The issue is whether Respondent is guilty of employing an unlicensed person to perform motor vehicle repossessions, in violation of Section 493.6118(1)(n), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds a Class "E" Recovery Agent license, Number E00-00107, effective October 29, 1997, and expiring on October 29, 1999. Respondent holds a Class "C" Private Investigator license, Number C00-010139, effective June 30, 1997, and expiring on June 30, 1999. Respondent holds a Class "ZR" Organizational Officer Position, Number ZR98-00005. Respondent owns TWI, Incorporated (TWI). TWI engages in the business of repossessing motor vehicles. Respondent also owns Florida State Towing Company and Florida State Transporting Company, which respectively engage in the businesses of towing motor vehicles and transporting motor vehicles. These three businesses operate out of the same business location. In 1996, TWI hired Ross Cardwell as a recovery agent intern. Mr. Cardwell applied for a recovery agent's license, but Respondent denied the application. Mr. Cardwell resigned from TWI and engaged in the repossession business in another state. Mr. Cardwell returned to Florida, and Florida State Towing Company rehired him on April 4, 1997. Respondent and Mr. Cardwell agreed that Mr. Cardwell would reapply for a recovery agent's license. In the meantime, Mr. Cardwell would tow vehicles for Florida State Towing Company. Respondent assigned Mr. Cardwell responsibilities in the field and the office. On several occasions, Mr. Cardwell assisted Respondent in repossessing motor vehicles. The procedure followed by Mr. Cardwell and Respondent was for Respondent to take control of the vehicle. After having done so, Respondent directed Mr. Cardwell to tow the vehicle to the company's lot. While Mr. Cardwell was towing the vehicle back to the lot, Respondent would locate other vehicles for repossession. Petitioner has produced evidence of company log entries that would suggest that Mr. Cardwell handled repossessions. However, these logs and anecdotal evidence in the form of testimony of two former employees is insufficient evidence to establish that Mr. Cardwell performed acts that would require a recovery agent's license. There is no direct evidence of such unlawful acts by Mr. Cardwell, and Respondent's description of their method of doing business is entirely plausible. Petitioner has failed to prove by clear and convincing evidence that Mr. Cardwell performed acts that required a recovery agent's license.
Recommendation It is RECOMMENDED that the Department of State enter a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 23rd day of March, 1999. COPIES FURNISHED: Michele Guy Assistant General Counsel Department of State Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250 Gordon R. Duncan Duncan & Tardif, P.A. Post Office Box 249 Fort Myers, Florida 33902 Honorable Katherine Harris Secretary of State The Capitol Tallahassee, Florida 32399-0250
The Issue The issue in this case is whether Respondents committed the offenses described in an Administrative Complaint entered by Petitioner on or about January 10, 1997.
Findings Of Fact Petitioner, The Department of Agriculture and Consumer Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for enforcing the Florida Motor Vehicle Repair Act, Sections 559.901-559.9221, Florida Statutes (hereinafter referred to as the "Act"). Respondent, Adam's Street Muffler Shop and Service Center, Inc. (hereinafter referred to as "Adam's Street Muffler"), is a dissolved Florida corporation. Adam's Street Muffler is located at 1401 South Adam's Street, Tallahassee, Leon County, Florida. Adam's Street Muffler is registered with the Department under the Act as a motor vehicle repair shop. The Department has assigned registration number MV-15484 to Adam's Street Muffler. Respondent, Tim Tanner, is the owner and operator of Adam's Street Muffler. At the time that Adam's Street Muffler register pursuant to the Act, a registration packet, including a copy of the Act, was provided to Adam's Street Muffler. On July 24, 1995, Robert Dan Drake, an investigator with the Department's Bureau of Motor Vehicle Repair, went to Adam's Street Muffler. Mr. Drake performed a compliance audit to determine whether repair estimate statements and invoices for services were in compliance with Sections 559.905 and 559.911, Florida Statutes. A copy of the repair invoice provided by Adam's Street Muffler personnel to Mr. Drake was determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes. See Petitioner's Exhibit 9. Mr. Drake discussed the requirements of the Act pertaining to repair estimates and invoices with Peggy Folsom, the secretary for Adam's Street Muffler. Mr. Drake also provided an On-Site Inspection Report/Citation (Petitioner's Exhibit 7), and a Compliance Checklist/Citation (Petitioner's Exhibit 8), to Ms. Folsom. These forms described the deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler. Adam's Street Muffler was given thirty days to correct the repair estimate and invoice. A revised form was submitted to the Department. See Petitioner's Exhibit 10. The corrected form was accepted by the Department. On July 1, 1996, Mr. Drake returned to Adam's Street Muffler. Mr. Drake discovered that the repair estimate and invoice used by Adam's Street Muffler for a complaining customer was the same form that he had found to be deficient on July 24, 1995. See Petitioner's Exhibit 12. Mr. Drake issued a second On-Site Inspection Report/Citation to Adam's Street Muffler as a result of the July 1, 1996 visit. Petitioner's Exhibit 11. The report again described the specific deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler. On October 1, 1996, Mr. Tanner paid a $300.00 fine for violating Sections 559.905 and 559.911, Florida Statutes. On December 1, 1996, two months after Mr. Tanner paid the fine, and approximately six months after the second violation of the Act, Dan Keller, an employee of the Department, visited Adam's Street Muffler. Mr. Keller examined forms titled "Repair Orders" in the files of Adam's Street Muffler. The forms discovered by Mr. Keller were determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes. Petitioner's Exhibits 1-5. The forms copied by Mr. Keller on December 1, 1996, were used as repair estimates and invoices for services performed. The evidence failed to prove when the vehicles at issue were brought to Adam's Street Muffler, that they were not brought to Adam's Street Muffler by person other than the owner, or that Adam's Street Muffler did not notify the customer pursuant to Section 559.909(1), Florida Statutes. None of the owners of the vehicles to which Petitioner's Exhibits 1-5 relate have filed a complaint with the Department concerning work performed by Adam's Street Muffler. The repairs evidence by Petitioner's Exhibits 1-5 were for repair work costing in excess of $50.00. The forms taken from Adam's Street Muffler on July 24, 1995, July 1, 1996, and December 1, 1996 are incorporated into this Recommended Order by reference. On or about January 10, 1997, the Department entered an Administrative Complaint against Adam's Street Muffler and Mr. Tanner. The Administrative Complaint contains two counts against Respondents: one for alleged violations of Section 559.905, Florida Statutes, and one for alleged violations of Section 559.911, Florida Statutes. Both counts relate the forms obtained by the Department in December of 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Agriculture and Consumer Services finding that Adam's Street Muffler Shop and Service Center, Inc., a Florida Corporation, and Tim Tanner, individually and as Director of Adam's Street Muffler Shop and Service Center, Inc., violated Section 559.911, Florida Statutes, as alleged in the Administrative Complaint entered January 10, 1997. IT IF FUTHER RECOMMENDED that Respondents be required to pay an administrative fine of $1,000.00 within thirty days of the date that the Final Order becomes final and the motor vehicle repair shop registration, MV-15484, issued to Respondents be suspended for a period of two weeks. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 June, 1997. COPIES FURNISHED: Lawrence J. Davis, Senior Attorney Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 J. Joseph Hughes, Esquire 1017-A Thomasville Road Tallahassee, Florida 32303-6221 Honorable Bob Crawford Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Department of Agriculture and Consumer Services Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800
