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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the demeanor of the witnesses, the following relevant facts are found: At all times pertinent to this proceeding, respondent T.A.S. Auto Sales held independent motor vehicle license #6VI-2652, with a licensed place of business at 117 1/2 Central Avenue in Brandon, Florida. The owner of T.A.S. Auto Sales is Donald Hunt. On May 1, 1985, the Division of Motor Vehicles issued license number 5VI-003620A to T.A.S. Auto Sales for a supplemental location at 312 East Brandon Boulevard in Brandon, Florida. The expiration date on this license was April 30, 1986. Donald Hunt leased the property at 312 East Brand on Boulevard and operated a retail car sales business there until approximately mid-June of 1985. He then decided to sell the business to Clarence W. Jenkins, and entered into an Assignment of Lease on July 1, 1985. According to Mr. Hunt, it was his intent to allow Mr. Jenkins to operate under the supplemental license of T.A.S. Auto Sales while Mr. Jenkins, doing business as Brandon Auto Brokers, obtained his own Florida Dealers License. However, according to Mr. Hunt, said arrangement was to terminate no later than July 28, 1985. A letter setting forth this agreement was received into evidence as respondent's Exhibit 4. From July 1, 1985, through July 28, 1985, Donald Hunt did supervise all title work performed through Brandon Auto Brokers and/or Mr. Jenkins. During July and early August, 1985, Brandon Auto Brokers secured a County occupational license, a Department of Revenue Certificate of Registration to collect sales and use taxes, a reassignment of telephone numbers, an insurance binder, a surety bond and membership in the Florida Independent Automobile Dealers Association. Signage indicating either Brandon Auto Brokers or "under new management" was also placed on the premises, but the date upon which such signage was erected was not established. Lois Jarvis, an inspector with the Division of Motor Vehicles, testified that she spoke on the telephone with Mr. Hunt and Mr. Jenkins on August 9, 1985, and thereafter mailed to Mr. Jenkins an application form for a dealer's license. It was Inspector Jarvis' understanding that Mr. Hunt was allowing Jenkins to operate under Mr. Hunt's supplemental license until such time as Jenkins obtained his own license. On September 4, 1985, she visited the supplemental lot to check on Mr. Jenkins' incomplete application. Her next visit with either Mr. Hunt or Mr. Jenkins occurred on September 23, 1985. At that time, while at Mr. Hunt's lot on Central Avenue, Mr. Hunt informed her that he had nothing more to do with the supplemental lot on Brand on Boulevard, and gave Ms. Jarvis his license for that location. Inspector Jarvis then went over to the supplemental lot and issued a Notice of Violation to Mr. Jenkins/Brandon Auto Brokers for offering, displaying for sale and selling motor vehicles without a license. On September 24, 1985, Ms. Jarvis requested the Department to cancel dealer license 5VI-3620A on the ground that "dealer closed lot and surrendered license." Mrs. Jarvis testified that she did not visit either the supplemental lot or the main lot in July or August of 1985. Her work records for July and August do not reflect a visit to either location. Mr. Hunt, and several witnesses testifying in respondent's behalf, testified that he told Inspector Jarvis in early July that he would have nothing more to do with the supplemental lot beyond July 28, 1985. It was their testimony that Mrs. Jarvis' response was that "there was no way Mr. Jenkins could be issued a license by July 28th, to which Mr. Hunt responded, "that's not my problem." Mr. Hunt admits that he did not specifically request Mrs. Jarvis to cancel his license for the supplemental lot as of July 28th, and that he did not deliver that license to Mrs. Jarvis until September 23, 1985. Based upon the demeanor and possible motives of the witnesses, as well as the documentary evidence received into evidence, it is concluded that Inspector Jarvis did not visit either the supplemental lot or the main lot for which T.A.S. held licenses in June, July or August of 1985. It is further found that Inspector Jarvis did not become aware that Mr. Hunt intended to cease all relationships with the supplemental lot until he delivered the license for those premises to her on September 23, 1985. By statute, an independent motor vehicle license period is from May 1 to April 30 of the following year. Licenses expire annually, "unless revoked or suspended prior to that date." Section 320.27(4), Florida Statutes. The Department has no rule, regulation, policy or established procedure for a licensee to surrender or cancel a license prior to the expiration date. On July 30, 1985, Bruce Reich purchased a 1980 Chevrolet Camero from the Jenkins at the supplemental lot. His checks were made payable to Brandon Auto Brokers. He did not think he was buying a car from T.A.S. or from Don Hunt. On or about September 30, 1985, Mr. Reich filed a Complaint Affidavit against Brandon Auto Brokers regarding this transaction. As of the date of the hearing, Mr. Reich had still not received title to the vehicle he purchased. On August 26, 1985, William S. Ryder purchased a 1981 Van from the Jenkins at the supplemental lot. On or about October 2, 1985, Mr. Ryder filed a Complaint Affidavit against T.A.S. Auto Sales on the ground that he had not received a clear title or plates for this vehicle. He had previously attempted to locate Mr. Jenkins, but was unable to find him.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent be DISMISSED. Respectfully submitted and entered this 31st day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 31st day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0471 The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 8. Rejected; the evidence demonstrates that respondent intended that its responsibilities with regard to the supplemental lot would terminate on July 28, 1985. Respondent 1 - 3. Rejected in part as improper findings of fact. 4 - 9A. Rejected; not supported by competent, substantial evidence. 9H. Accepted, except that the evidence demonstrates that the Ryder complaint named T.A.S. Auto Sales as the dealer. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Michael N. Kavouklis, Esquire 419 West Platt Street Tampa, Florida 33606 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
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
The Issue Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess penalties of $4,101 pursuant to Section 316.545, Florida Statutes, regulating operation of commercial vehicles on a highway in the State of Florida?
Findings Of Fact On April 3, 1992, Beverly Griffin inspected and weighed two commercial vehicles owned and operated by the Respondent at the Sneads, Florida weigh station. The drivers produced the vehicles' Wisconsin apportioned registration, but the IRP permits and trip tickets were expired. The vehicles were weighed. One weighed 76,000 pounds, and the other weighed 76,020 pounds. The Respondent admitted the violation; however, the Respondent's representative indicated in his plea of mitigation that the company had obtained required permits and brought its equipment into the state on the trucks; however, it had taken longer than expected to complete the work with the machinery the trucks were carrying, and the permits had expired before the trucks and equipment could leave the state. The Department levied a fined in the amount of $4,101, at 5 cents/ pound for the overweight trucks plus $80 for new trip tickets, $90 for temporary fuel use permits, and $100 penalty for not having current fuel use permits. The Respondent paid the penalties. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finalizing assessment of the $4,351 in penalties against the Respondent pursuant to Section 316.545, Florida Statutes. DONE and ENTERED this 17th day of November, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 17th day of November, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Gary Pomeroy, Vice President The Big Red Machinery Movers, Inc. Post Office Box 274 Butler, WI 53007 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issue is whether Respondent violated Section 320.27, Florida Statutes, and if so, 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-29558. Petitioner issued the license based upon an application signed by Brenda L. Johnson, as President. Respondent's address of record is 3707 N. Main Street, Jacksonville, Florida 32206. On or about August 30, 2001, two of Petitioner's compliance examiners conducted an initial records inspection of Respondent's dealership. The purpose of the initial inspection was to determine whether the dealership was complying with statutory and rule requirements. Because the initial inspection was of an educational nature, it gave the compliance examiners an opportunity to provide Respondent with guidance in areas that needed improvement. During the August 30, 2001, inspection, the compliance examiners found violations of Sections 319.23(6), 320.131(7), 320.27(6), 320.27(7), 320.27(9)(b)16, and 320.27(9)(b)17, Florida Statutes. The compliance examiners also found violations of Rule 15C-1.004(3), Florida Administrative Code. Specifically, the August 30, 2001, inspection, included but was not limited to the following violations: (a) titles on vehicles not properly filled out; (b) buyer's guides not posted; (c) no titles to prove ownership on vehicles; (d) no proof of purchase for one vehicle; (d) titles not transferred within 30 days of sale; and (e) temporary tag log not properly filled out. The compliance examiners discussed the above-referenced violations with Respondent's general manager, Steve Landers, advising him that Petitioner would conduct a follow-up inspection within 60 days. The inspectors also advised Respondent's president, Barbara Johnson, about the violations via telephone. On or about October 10, 2001, Petitioner's compliance examiners conducted the 60-day follow-up inspection of Respondent's records. During this inspection, Respondent did not provide the examiners with a title or other proof of ownership for a 1991 Lincoln, Vehicle Identification Number (VIN) 1LNCM82W0MY78. The Lincoln was parked in an area where other vehicles were displayed for sale. There is no credible evidence that the Lincoln was Mr. Lander's personal vehicle. The October 10, 2001, inspection also revealed that Respondent had issued a total of 50 temporary tags. However, there were no records to verify the sale of the vehicles listed in the temporary tag log. During the October 10, 2001, inspection, the compliance examiners requested Mr. Landers to take copies of all of Respondent's records to Petitioner's office in Jacksonville, Florida, for a continuation of the follow-up inspection. The examiners also made a request for Mrs. Johnson to accompany Mr. Landers to the Jacksonville office. On or about October 25, 2001, Petitioner's compliance examiners conducted the continuation of the 60-day follow-up inspection of Respondent's record at the Jacksonville office. During the inspection, the examiners reviewed a total of 30 motor vehicle records, finding the following violations: (a) no proof of purchase for 30 vehicles; (b) no documentation indicating that Respondent had applied for titles for 20 vehicles; (c) no copy of registration for tag and title issuance documentation on 26 vehicles; and (d) no documentation indicating the date sold and odometer disclosure for 27 vehicles. On or about August 21, 2002, Petitioner's compliance examiners conducted another follow-up records inspection on Respondent's premises. At that time, Respondent did not have a title or other proof of ownership for a blue Pontiac Grand Am, VIN 1G2NE5432NM052548, or a red Dodge Shadow, VIN 1B3XP24D6PN566374, both of which were displayed for sale. There is no persuasive evidence that Respondent ever had the required proof of ownership for these vehicles. On August 21, 2002, Respondent's records indicated that it had sold three vehicles: (a) a 1985 Ford, VIN 1CLEG25K047; (b) a 1994 Chevrolet, VIN 2C1MR2464R6749435; and (c) a 1989 Buick, VIN 1G4NJ14D1kM026233. Respondent's records relating to the purchase and sale of these vehicles were incomplete. For instance, there was no proof of purchase/sale for two of the vehicles. Additionally, Respondent did not have records of the odometer disclosure at the time of purchase or sale for any of the three vehicles. Finally, Respondent had issued more than two temporary tags for one vehicle. While the examiners were conducting the August 21, 2002, inspection, Respondent had six vehicles displayed for sale. None of the vehicles had buyer's guides posted in their windows. The examiners reviewed Respondent's temporary tag records on August 21, 2002. They found that several such records lacked required signatures and VINs. On or about October 11, 2002, Petitioner's compliance examiners conducted a third follow-up records inspection on Respondent's premises. At that time, Respondent did not have title or any other proof of ownership for the following: (a) a 1989 Plymouth, VIN 1P3BA56J8KF504260; (b) a 1992 Toyota, VIN JT2EL46B8N0@@8549; and a 1988 Toyota, VIN 1NYAE82G4JZZ536776. Additionally, the 1989 Plymouth and the 1992 Toyota did not have a buyer's guide properly posted. The review of Respondent's sales records on October 11, 2002, revealed that Respondent had sold a 1993 Ford, VIN 1FAPP14JPW130409. However, Respondent did not have proof of purchase or an odometer disclosure statement for this vehicle. On October 11, 2002, Respondent's temporary tag records indicated that it had issued three temporary tags to L. Smith for the 1993 Ford. Respondent issued these tags on June 26, July 26, and August 24, 2002. The October 11, 2002, inspection revealed that Respondent sold the 1993 Ford on June 26, 2002, and applied for the title on September 5, 2002. Thus, Respondent failed to file the application for certificate of title by July 26, 2002, or within 30 days of June 26, 2002. At the conclusion of every inspection referenced above, Petitioner's compliance examiners reviewed the deficiencies they found with Mr. Landers. They discussed the statutes and rules that Respondent had violated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner issue a final order revoking Respondent's motor vehicle dealer's license. DONE AND ENTERED this 14th day of August, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 14th day of August, 2003. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Kenneth Steven Landers Officer/Director 433 Safer Lane Jacksonville, Florida 32211 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0600
The Issue Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess a penalty of $1,250 pursuant to Section 316.545, Florida Statutes, regulating operation of a commercial vehicle on a highway in the State of Florida?
Findings Of Fact On June 27, 1991, Sergeant Tommy Jackson, observed a dump truck traveling eastward on 65C in Gadsden County, Florida. The Sergeant stopped the truck which did not have a tag. The driver of the truck, which did not have a name on it, was asked for the registration. The driver could not produce the registration. Sergeant Jackson called Officer Bennie Lee York, Jr., to come assist him in weighing the dump truck on portable scales. The vehicle weighed 60,000 pounds. The vehicle's serial number was checked through the Florida Division of Motor Vehicle's computer which determined the vehicle had no Florida tag or registration. Sergeant Jackson and Officer York went to the job site to which the truck was bound to verify the tag and registration of the vehicle. A Georgia registration and incorrect tag was presented. Sergeant Jackson went to his nearby home to call and verify the registration with the Georgia authorities in Atlanta, Georgia. Georgia reported no record of a tag for the vehicle in the State of Georgia. Sergeant Jackson returned to the job site and advised the job foreman that the State of Georgia did not report the vehicle as being registered in Georgia. About two hours later, Mr. Kinard of General Development brought a registration that matched the truck serial number. However, it was for a non-apportioned Georgia commercial tag. Officer York advised Mr. Kinard that an apportioned International Registration Plan tag or a Florida Commercial registration was required to operate a commercial vehicle in Florida. Officer York issued a load report to General Development assessing a penalty for being 25,000 pounds over the legal limit in the State of Florida of 35,000 for a commercial vehicle. The amount of the penalty was $1,250.00, or 5 cents for every pound of vehicle weight over 35,000 pounds. The Respondent admitted the violation, however, the Respondent's representative indicated in his plea for mitigation that the driver had taken the truck without authorization. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finalizing assessment of the $1,250.00 penalty assessed against General Development pursuant to Section 316.545, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February 1992. STEPHEN F. DEAN 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 26th day of February 1992. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Campbell, Secretary General Development Post Office Box 654 Quincy, Florida 32351 Ben G. Watts Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
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
