The Issue The issue for disposition in this proceeding is whether Respondent's motor vehicle dealer license should be revoked for his prior conviction of a felony, as proposed in an administrative complaint dated October 26, 1993.
Findings Of Fact It is uncontroverted that Respondent Lorenzo Reddick, Jr. (Reddick) holds an independent motor vehicle dealer license, issued by the Department of Highway Safety and Motor Vehicles (DHSMV). The complaint fails to allege, and there is no evidence of, when the license was issued. The licensed place of business is 3214 Orange Center Boulevard, #C, Orlando, Florida. On April 27, 1993, Reddick pleaded, and was adjudged guilty of a single count offense in a multi-count superseding indictment, in U.S.A. v. Lorenzo Reddick, Case #92-104 Cr-Orl-19, in the U.S. District Court for the Middle District of Florida. The offense, as described in the Judgment, was "Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity", on 12/30/91, pursuant to title 18 U.S. Code, section 1957(a), and title 18 U.S. Code, Section 2. (Petitioner's exhibit #1) Reddick was sentenced to twenty-four months imprisonment, commencing May 21, 1993, with two years supervision after release. According to the court documents comprising Petitioner's exhibit #1, the sentence was less than provided in sentencing guidelines "upon motion of the government, as a result of defendant's substantial assistance." Reddick is currently serving his prison term. At the time of the offense Reddick was not operating nor was he licensed as a motor vehicle dealer. There is no evidence of whether his license was obtained before or after his conviction. There is no evidence whatsoever of the offense other than what is found on the face of the judgment, as reflected above. DHSMV learned of Reddick's conviction in the process of investigating a filed complaint related to failure to transfer title and registration of a vehicle purchased from Reddick's dealership. Neil Chamelin was the manager of DHSMV's dealer license and consumer complaint programs and was responsible for evaluating requests for administrative action and preparing administrative pleadings for the division director. Chamelin received a copy of Reddick's Judgment of Conviction and Sentence and based the administrative complaint on those documents only. Chamelin has no independent knowledge of the offense. DHSMV has a longstanding policy that a single felony conviction may be sufficient for the agency to take action against a dealer's license. That is, the agency has interpreted the language of the relevant statute to mean that a licensee does not automatically get one free felony before his dealer's license is jeopardized, even after the language was amended seven or eight years ago to include a requirement of sufficient frequency of violations as to establish a pattern of wrongdoing.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: that the Department of Highway Safety and Motor Vehicles enter its Final Order dismissing the Administrative Complaint that is the subject of this proceeding. DONE AND RECOMMENDED this 17th day of May, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 17th day of May, 1994. COPIES FURNISHED: Michael J. Alderman Assistant General Counsel Department of Highway Safety & Motor Vehicles Neil Kirkman Building, Room A432 Tallahassee, Florida 32399-0504 James R. Cunningham, Esquire 200 East Robinson, Suite 1220 Orlando, Florida 32801 Charles J. Brantley, Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Room B439 Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Conclusions This matter came before the Department upon the Order Closing File and Relinquishing Jurisdiction entered by E. Gary Early, an Administrative Law Judge of the Division of Administrative Hearings and the Parties’ Settlement Stipulation. Having reviewed the Order and Stipulation, and being otherwise fully advised in the premises, it is ORDERED AND ADJUDGED: L. That the Settlement Stipulation (copy attached) is hereby and adopted and incorporated into this final order. 2. That Respondent’s motor vehicle dealer license VI-1008040 was revoked effective April 17, 2012. Filed April 23, 2012 7:38 AM Division of Administrative Hearings 4 DONE AND ORDERED this go day of April, 2012, in Tallahassee, Leon County, Florida. a M4 4 we Birrayiee Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services this a »_ day of April, 2012. Nalini Vinayak, Dealer Hcense Administrator Copies Furnished: Jonathon Glugover, Esquire Glugover Law and Mediation Post Office Box 2613 Daytona Beach, florida 32115 James K. Fisher, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Neil Kirkman Building, Room A-430 Tallahassee, Florida 32399 E. Gary Early Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399
Findings Of Fact Respondent, Columbia Motor Sales, is a motor vehicle dealer licensed under Section 320.27, Florida Statutes. Respondent is owned solely by Jose B. Menna. In order to obtain the license, Menna completed an application for licensure on behalf of Respondent and filed it with DMV on July 5, 1991. The license was issued the same day. On the application, which was signed by Menna under oath, Menna answered "NO" to the following questions: Has the applicant or any partner or corporate officer or director: Been arrested on a felony or equivalent charge anywhere? Been convicted of a felony or equivalent charge anywhere? As required by Section 320.37(3), Florida Statutes, DMV obtained fingerprints from Menna and submitted them to the Florida Department of Law Enforcement and the Federal Bureau of Investigation (FBI) for confirmation of Menna's criminal record. The FBI's criminal history report shows that Menna was arrested for the felonies of receiving stolen property and assault with a deadly weapon and was convicted of the felony assault charge. If an applicant shows an arrest or conviction on his dealer license application, DMV's policy does not require an automatic denial. If only an arrest is shown, DMV conducts a further investigation to determine the applicant's fitness for licensure. If a conviction is shown, DMV would also investigate the seriousness and nature of the offense, whether the applicant's civil rights had been restored, and the surrounding circumstances before DMV would make a determination on the application. When an applicant does not reveal prior arrests or convictions on his application and DMV discovers their existence, DMV notifies the licensee and gives him an opportunity to submit documentation to clear the matter up informally. DMV did send Menna a letter advising him that there was a problem with his criminal record. The letter required Menna to provide information and documents regarding these criminal events within 20 days. It further stated that "Failure to respond to this letter will result in an administrative proceeding to revoke you license." Menna acknowledges that he received the letter, but he went to Guatemala for five weeks to sell cars and did not respond to the letter. After he returned, he says that he tried to call DMV, but at no time did he ever provide documents regarding these arrests and conviction. In fact, even at the hearing, he had no such documents with him. DMV's policy and position is that an applicant's failure to disclose and truthfully answer the questions on the application raises serious questions as to the applicant's honesty and integrity in dealing with the public. Menna testified that if he'd known that there were records showing the arrests and conviction, he would have answered the questions on the application "YES." He admits knowing that he had been arrested and convicted as the records show, but believed the records no longer existed. It is found that Menna was not honest when he denied having been arrested or convicted, because he knew of the existence of the arrests and conviction at the time he denied them. The question was simple and straightforward. Menna believed that his denial would not be a lie as long as no records existed to show the arrest and conviction. Menna was wrong in this belief.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, enter a Final Order and therein revoke the motor vehicle dealer license of Columbia Motor Sales. RECOMMENDED this 8th day of July, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 8th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1788 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Division of Motor Vehicles Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-7(1-7), 8 & 9(7), and 10- 13(8-11). Proposed finding of fact 14 is unnecessary. COPIES FURNISHED: Michael J. Alderman Assistant General Counsel Division of Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, FL 32399-0500 Stephen M. Witt Attorney at Law Post Office Box 2064 Lake City, FL 32056
Findings Of Fact At all times relevant hereto, Best Value Used Cars was licensed as am independent motor vehicle dealer holding License No. 6V1-5457. Best Value Used Cars is owned by David Stroud. Wendy Stroud, daughter of David Stroud, was employed by Bell Chevrolet as a title clerk before and during August 1986. Employees of Bell Chevrolet are allowed to purchase two cars per year from Bell without paying sales commissions. David Stroud had a 1984 Nissan he intended to trade in on a car for his daughter, He took this Nissan to Bell for an appraisal and to see if he could work out a deal. The title to the Nissan was in the name of Best Value Used Cars and showed the Nissan as a rebuilt car. Rebuilt cars have a lower sale value than do cars that have not been wrecked. Initially, Stroud attempted to trade the Nissan on a Corvette. John Barton, who was in charge of new car sales, drove the Nissan around the block while Stroud drove the Corvette. Since the Nissan lien was not paid off, no deal was consummated. Each of the three employees of Bell who testified was qualified to appraise the Nissan and a fair appraisal value for a 1984 Nissan 4-door sedan was $4,000 in August 1986. None of these witnesses recall appraising the Nissan. It is not a normal practice to take in a rebuilt vehicle for wholesale. Gary Sears, Bell general manager, testified his only involvement was to fill out the sales document (Exhibit 1) using the figures supplied him by others. John Lindberg, Bell truck manager, sold Stroud the 1982 Ford pickup he purchased (Exhibit 1) by trading in the Nissan and paying the $2,000 difference in the value of each vehicle. All of these witnesses denied seeing the title to the Nissan until after the deal was closed and denied that Stroud had ever told them the Nissan had a rebuilt title. Normally the person doing the appraisal would at least look at the title before reducing the appraisal to writing. When a transaction closes, the general manager at Bell normally clips all of the papers together and presents them to the title clerk who processes the titles involved. The same day Stroud left the Nissan in exchange for the Ford, the Nissan was moved for wholesale. John Lindberg learned from another dealer that the Nissan had a rebuilt title and he testified he first saw the vehicle title the following week. He told Wendy Stroud the deal was held up, but gave her no specific instructions regarding the title. Wendy Stroud received the Nissan title and when the Ford title reached her desk, she processed the titles routinely. Shortly after the Nissan's title was changed to Bell Chevrolet, Wendy Stroud was fired from her job as title clerk at Bell Chevrolet. David Stroud signed Exhibit 1 and four other documents when he traded the Nissan in on the Ford, but the only document he received was Exhibit 1, which he offered into evidence. This exhibit does not bear the seller's signature and is entitled Buyer's Worksheet. These other documents included notification that the vehicle had been wrecked, that the odometer reading was accurate, and something about a $100 payment for maintenance insurance for 30 days. None of these documents was offered into evidence. No one challenged Stroud's testimony that he signed four other documents, but Petitioner offered none of these documents into evidence to corroborate or rebut any testimony. When Stroud returned from the bank with the check for the $2,000 balance, the Nissan was already gone from Bell's lot. Bell's employees all denied ever seeing the Nissan title before the transaction was completed, or that Stroud told them the Nissan had been rebuilt. Nor did they receive written notice from Stroud that the Nissan had been rebuilt. Stroud testified that when he first took the Nissan for an appraisal and made the attempt to purchase the Corvette, he gave the keys and title to Barton, who, after driving the Nissan, gave the keys and title to Sears. Both Strouds testified that David Stroud received back the title and keys from Sears.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On November 16, 1987, the Respondent signed, under oath, an application for an independent motor vehicle dealer license for the business name of Southern Auto Sales which was submitted to the Department, and, based upon that application, the Department issued an independent motor vehicle dealer license, number 7VI-011359, to Respondent d/b/a Southern Auto Sales on November 30, 1987. In the application referred to above, Respondent answered no to the question, Has the applicant or any partner or corporate officer or director: Been arrested on a felony or equivalent charge anywhere?; Been convicted of a felony or equivalent anywhere? In 1988, 1989, and 1990, Respondent submitted to the Department a Short Form Application, commonly referred to as a renewal application, and the Department renewed license number 8VI-011359 in 1988, 9VI-011359 in 1989, and 0VI-011359 in 1990. The number before the prefix VI indicates the year of issuance. Respondent signed each of these renewal applications under oath wherein the affirmation stated " . . . the information contained in this application is true and correct and that nothing has occurred since I filed my last application for a license or application for renewal of said license, as the case may be, which would change the answers given in such previous application." Additionally, the instructions for the renewal application advised the applicant that the short form could be used if the applicant was currently licensed and, among other things, there were no changes in the applicant's personal background such a criminal conviction. Respondent, currently holds an independent motor vehicle dealer license, number 1VI-011359, issued by the Department on May 1, 1991. Respondent, using the name William J. Butler, was arrested and charged in December 1977 with uttering a forgery. The Respondent pled guilty to the charge of uttering a forgery in April 1978 before the Circuit Court, Harrison County, Mississippi and was sentenced to four years in the Mississippi Department of Corrections. In 1978, the Respondent, using the name William J. Butler, was arrested and charged with uttering a forgery. Respondent was subsequently convicted and sentenced by the Circuit Court, Jackson County, Mississippi to four years in the Mississippi Department of Corrections, said sentence to run concurrently with the sentence imposed by the Circuit Court, Harrison County, Mississippi. William J. Butler and Bernard J. Haney, the Respondent in this case, are one in the same person. On October 25, 1979, after serving only approximately 1 1/2 years of the two four-year sentences, Respondent was paroled by the Mississippi Parole Board with conditions for supervision made a part of the parole. In 1981 Respondent sought and received treatment for alcoholism, having been an alcoholic for a period of twenty years. After treatment, with the help of Alcoholics' Anonymous, Respondent has maintained a life of sobriety. In November 1988 a Warrant for Retaking a Paroled Prisoner was issued against Respondent, and he was recommitted to the Mississippi Department of Corrections for "absconding supervision" of his parole. However, with the help of some "new" friends, gained after his treatment for alcoholism, Respondent was incarcerated for only a short period, and was "honorably discharged" from the Mississippi Department of Corrections on December 20, 1984. The Harrison County charge of uttering a forgery was in connection with a check for $169.92, and the Jackson County charge of uttering a forgery was in connection with a check for $139.36. There is nothing stated in the Discharge Certificate that should have led the Respondent to believe or understand that his criminal record had been expunged and his rights restored upon receiving his "honorable discharge" from the Mississippi Department of Corrections in December 1984. However, considering the circumstances surrounding his commitment in the first place, his recommitment in 1984 and his immediate release thereafter, Respondent's testimony that such was his belief and understanding is credible. There is insufficient evidence to show that at the time of his initial application for licensure in 1987 or at the time of his renewal applications in 1988, 1989 and 1990, that Respondent acted fraudulently or willfully misrepresented the facts when he answered no to the questions concerning any prior arrests or convictions for a felony. After the release in 1979 and up to the date of his initial application for licensure, the Respondent's criminal record is clear except for the arrest in 1984 where the charges were dropped but the arrest resulted in his recommitment. From the date of his initial application until the date of the hearing the Respondent's criminal record is clear except for an arrest in 1990 concerning charges of tampering with an odometer. Apparently, these charges have been dropped and the matter handled civilly through the Polk County Citizen Dispute Settlement Center.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department enter a Final Order dismissing the administrative complaint filed herein. DONE and ENTERED this 27th day of August, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 27th day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner - 9. Adopted in Findings of Fact 5, 6, 7, 8, 1, 1, 2, 3, and 4, respectively. 10. Stated more as an argument than a finding of fact, otherwise rejected since there was no substantial competent evidence in the record to prove that there was fraudulent or willful misrepresentation of the facts in the application. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent's Proposed Recommended Order is divided into three principal parts: (a) Proposed Findings of Fact; (b) Comments on Testimony and Evidence; and (c) Proposed Conclusions of Law. Only the Proposed Findings of Fact will be addressed to in this Appendix. Adopted in substance in Finding of Fact 1. - 3. Unnecessary. Adopted in substance in Finding of Fact 1. - 7. Covered in Preliminary Statement. Conclusion of Law. Covered in the Preliminary Statement, otherwise unnecessary. Covered in the Preliminary Statement. - 12. Covered in the Preliminary Statement, otherwise unnecessary or not material or relevant. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A432 Tallahassee, FL 32399-0504 Charles R. Mayer, Esquire Post Office Box 267 Highland City, FL 33846 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500
Findings Of Fact Facts Stipulated to by the Parties: Respondent Platinum Motor Cars, Inc. (Platinum), holds an independent motor vehicle dealer license, number VI-17331, issued by the Department. Joseph A. Camino III was formerly the principal and licensee of an entity known as J & J Auto Sales. The Department filed two Administrative Complaints against J & J Auto Sales, Case Nos. DMV-88-42 and DMV-90-01. After informal hearings on each of those Complaints, J & J Auto Sales was assessed and subsequently paid civil fines. No license held by Joseph A. Camino III has ever been revoked by the Department. Joseph A. Camino III has never been convicted of a crime which resulted in his being prohibited from continuing to hold a motor vehicle dealer license under Section 320.27(9)(s), Florida Statutes. Lynette Bowman Camino was listed as an officer and director of Platinum Motor Cars, Inc., on the initial application for licensure filed by the corporation. Lynette Bowman Camino is the wife of Joseph A. Camino, III. Lynette Bowman Camino has never held a motor vehicle dealer license in her individual name. Lynette Bowman Camino has never been convicted of a crime which would prohibit her from holding a motor vehicle dealer license under Section 320.27(9)(s), Florida Statutes. Before the issuance of the license to Platinum, Lynette Bowman Camino withdrew as an officer or director of the corporation. The Department advised Platinum in a letter dated April 8, 1992, that its application was initially denied for the reasons set forth in that letter. On April 13, 1992, Michael J. Smith, President of Platinum, executed an affidavit as a condition of the Department's approval of the application for license. The salient portions of that response to the April 8, 1992 denial letter are set out in Finding 22 below. Joseph A. Camino III is currently employed by Platinum as a motor vehicle buyer and is an authorized agent of Platinum at the Lauderdale-Miami Auto Auction, an auction for dealers and wholesalers. Joseph G. Camino, father of Joseph A. Camino III, was a co-owner of J & J Auto Sales. Joseph G. Camino, father of Joseph A. Camino III, has never been associated with Platinum in any capacity. Joseph A. Camino III was not the licensee, owner or undisclosed principal of International Motor Cars. At the time of the issuance of Platinum's license, all shares in the Respondent corporation were jointly held by Michael J. Smith and Sandra J. Smith. To date, the Department has not sent notice to Lynette Bowman Camino individually of any right to request a hearing on the agreement between the Department and Platinum embodied in the April 13, 1992 affidavit of Michael J. Smith. (See Finding 22 below). To date, the Department has not sent notice to Joseph A. Camino, III individually of any right to request a hearing on the agreement between the Department and Platinum embodied in the April 13, 1992 affidavit of Michael J. Smith. (See Finding 22 below). The April 8, 1992 letter disclosing the Department's "Intent to Deny License Application" contained a clear point of entry for Platinum giving notice that the applicant could request a Chapter 120 proceeding to contest the Department's expressed intention to deny the license sought. Joseph A. Camino III as an authorized agent of Platinum, is authorized to transact business, including vehicle sales and purchases, on behalf of the Platinum at Lauderdale-Miami Auto Auction, Inc. The affidavit executed by Michael J. Smith, President of Platinum (Joint Exhibit 1), contains the following paragraphs: That as of this date, neither LYNETTE BOWMAN CAMINO, JOSEPH A CAMINO, III, JOSEPH A. CAMINO, JR., nor any other member of said Camino family has any interest or position whatsoever in or with Platinum Motorcars, Inc. That from this day forward, no member of the aforesaid Camino family shall be involved with Platinum Motorcars, Inc., on a financial management, operational or sales basis. That affiant acknowledges and understands that if any member of the aforesaid Camino family shall in the future be involved with Platinum Motorcars, Inc., on a financial, management, operational or sales basis, such involvement shall result in the Florida Department of Highway Safety and Motor Vehicles taking administrative action to revoke the license to do business of Platinum Motorcars, Inc. (underlining added; capitalization and boldface in original) As the authorized agent for Platinum with the authority to buy and sell vehicles at the Lauderdale-Miami Auto Auction, Joseph A. Camino III is involved with the Respondent on an "operational or sales basis." Based upon the foregoing Finding, Platinum has breached its undertaking embodied in paragraphs 4 and 5 of the Smith Affidavit set out above in Finding 22. The authorization of Joseph A. Camino III to act for Platinum contained in Petitioner's Exhibits 1 and 2 is dated April 22, 1992, only nine days after Joint Exhibit 1 (the affidavit quoted in Finding 22) was signed under oath by Platinum's President. Based on this, I infer that the promises set out in paragraphs 4 and 5 of the affidavit were made with no intention of honoring them. The affidavit was executed in bad faith and constitutes a willful misrepresentation made in an attempt to obtain licensure, and to avoid a Section 120.57(1) hearing on the licensure application of Platinum Motor Cars, Inc.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department enter a final order revoking the Respondent's motor vehicle dealer license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of July 1993. WILLIAM R. DORSEY, JR. 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 9th day of July 1993. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Barbara K. Sunshine, Esquire 2395 Davie Boulevard Fort Lauderdale, Florida 33312 Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Enoch Jon Whitney General Counsel Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal of Request for Hearing based on Respondent’s relinquishment of its motor vehicle dealer license, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed June 9, 2010 8:49 AM Division of Administrative Hearings. DONE AND ORDERED this pi G. of June, 2010, in Tallahassee, Leon County, Florida. RL A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this day of June, 2010. Ce ™ NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: R. Lee Dorough Dorough Calzada & Soto, LLP 419 North Magnolia Avenue Orlando, Florida 32801 Robert Hartman Seminole Scooters, Inc. 6227 Park Boulevard Pinellas Park, Florida 33781 James K. Fisher, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A308 Tallahassee, Florida 32399 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
Findings Of Fact Based on the evidence adduced at hearing, the undersigned makes the following findings of fact: Respondent holds a license issued by Petitioner which permits it to engage in the business of a motor vehicle dealer at 9901 N.W. 80th Avenue, Bay 3C, Hialeah Gardens, Florida. On Friday, September 9, 1988, during normal business hours, Karen Reyes, who is employed by Petitioner as a License and Registration Inspector, visited this location to attempt to conduct an annual inspection of Respondent's records. The doors to the warehouse where the business was supposed to be located were closed and locked and no one was around the dealership. Reyes left a note requesting that a representative of the dealership contact her. She then-departed. Reyes returned to the location on Tuesday, September 20, 1988. Although it was mid-morning, the warehouse doors were closed and locked and there was no one present. Before departing, Reyes left a second note asking that she be contacted by someone from the dealership. The following day Reyes attempted to telephone the dealership. No one answered the phone, however, when she called. Reyes reported her findings to her supervisor. As a result, on October 20, 1988, Respondent's President, Javier F. Rodriquez, was sent a letter in which he was advised that Petitioner proposed to revoke Respondent's motor vehicle dealer license on the ground that Respondent had closed and abandoned its licensed location. The letter further advised that Respondent had the right to request a formal hearing before any final action was taken against it. Rodriquez responded to the letter by requesting a hearing at which he would have the opportunity to present proof that the dealership had not been closed or abandoned. In view of this response, Reyes was instructed by her supervisor to pay another visit to the dealership. She made this visit on Tuesday, November 8, 1988. This time she encountered two men at the location. There were also a couple of cars there as well. One of the men, who claimed to be a representative of the dealership, telephoned Rodriquez's wife and had her speak with Reyes. During their telephone conversation, Mrs. Rodriquez informed Reyes that her husband was still active in the automobile sales business, but that he was conducting his business at their home. At the conclusion of their discussion, Reyes asked Mrs. Rodriquez to have her husband call Reyes' office. Mr. Rodriquez telephoned Reyes' office on November 16, 1988. Reyes was not in, so Rodriquez left a message. Later, that day, Reyes returned the call, but was unable to reach Rodriquez. The following day, Reyes went back to the dealership, where she found the same two men she had met there on November 8, 1988. Rodriquez, however, was not at the dealership. Reyes therefore left. She came back later in the day. This time Mr. Rodriquez was present and he spoke with Reyes. When asked by Reyes why there was no business activity nor records at the licensed business location, Rodriquez responded that the dealership was now open every day from 9:00 a.m. to 4:00 p.m. He provided Reyes with no additional information. Reyes revisited the dealership on Friday, January 13, 1989, Wednesday, January 18, 1989, Thursday, January 19, 1989, and Monday, January 23, 1989, during normal business hours. On each of these occasions, she found no one at the location and the doors to the warehouse closed and locked. She made another visit on Monday, January 30, 1989. Although it was during normal business hours, there was no indication of any activity at the dealership. Furthermore, the sign which had identified the business had been removed. This prompted Reyes to speak with the leasing agent at the warehouse complex. The leasing agent told Reyes that Respondent was no longer occupying space at the complex.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's motor vehicle dealer license. DONE and ORDERED this 27th day of March, 1989, in Tallahassee, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1989. COPIES FURNISHED: Michael J. Alderman, Esquire Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0504 Javier F. Rodriquez, President Inrodar Auto Sales, Inc. 9901 N.W. 80th Avenue, Bay 3C Hialeah Gardens, Florida 33016 Charles J. Brantley, Director Department of Highway Safety And Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Department of Highway Safety And Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue Whether there is probable cause for petitioner to bring an action against respondents, or any of them, for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Mark Sherwood Turner started working for Gulf Coast Motors in 1982. At the time, Charles E. Pace owned all of the inventory and other assets of the business, a used car lot at 301 Beverly Parkway in Pensacola, Florida. When Mark Turner's name was added to the fictitious name papers, it was not because he had acquired an ownership interest in the business; it was done in order to effectuate an agreement between him and Mr. Pace: They had agreed that Turner could use the lot to display his own cars and otherwise to operate his own, independent used car sales business, without incurring the expense of obtaining his own motor vehicle dealer's license. In exchange, Turner was to run Pace's business in Pace's absence. They kept separate books, and neither Turner had an ownership interest in the cars sold to Messrs. Hayes, Allen and Crutchfield, or Ms. Youmans. Later Pace sold one Richardson the accounts receivable generated by Gulf Coast Motors. Richardson subsequently assigned to Mark Turner everything he had acquired from Pace. On March 11, 1983, the corporate respondent was organized and Mark Turner acquired an interest in Gulf Coast Motors, Inc. Mark's brother David Jerry Turner began working at the used car lot a year or two before the final hearing. He came in three days a week, worked in the office and occasionally acted as a salesman. On June 25, 1984, he also acquired an interest in Gulf Coast Motors, Inc. Crutchfield On March 15, 1984, Joel Harold Crutchfield bought a Dodge Monaco for $1531 after Joe Smith told him it was in good mechanical condition. He signed a form contract that had "GULF COAST MOTORS" at the top with "Charlie Pace" and "Mark Turner," printed underneath. Respondent's Exhibit No. 1. Nobody else signed this undated form contract, which provided, among other things: Any payment late will include a late charge of $5.00 for every three days late . . . GULF COAST MOTORS has full rights to repossess any vehicle with a payment three days late. If any vehicle is repossessed the buyer has up to 10 days in which to pay the vehicle off in full and a $100.00 repossession charge to redeem the vehicle. Mr. Crutchfield also signed a form warranty disclaimer, stating "THIS USED MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY WARRANTY . . .". Respondent's Exhibit No. 2. Mark Turner and Glen Padgett witnessed his signature on the warranty disclaimer. Mr. Crutchfield understood that he was buying the car "as is." Under the agreement, Mr. Crutchfield made a downpayment of $250 and undertook bi-weekly payments of $60 to retire a balance of $1281. Joe Smith signed an undated receipt for $250 on which "GULF COAST MOTORS" was stamped. David J. Turner signed a similarly stamped receipt for $60 on March 31, 1984. Mark Turner's and David Turner's names were on front of the office building at the car lot. The night following the purchase, Mr. Crutchfield had to buy a new starter for the car. When he drove the car home, he discovered that the brakes, the brake lights and the horn did not work. Only three lug nuts held each tire to its wheel. About a month after he had the car, the front end dropped and the car was "so low it looked like it would hit the road"; the frame was broken. Eventually Mr. and Mrs. Crutchfield decided to give the car back because Joe Smith and Charlie Pace refused to fix the frame. They made their last payment on or about September 17, 1984. Mrs. Crutchfield left the car on the lot and walked off ignoring calls to come back. A couple of days later the car was gone. The Crutchfields never received any correspondence in connection with the car thereafter. Youmans Frances Gayle Youmans also purchased a car on March 15, 1984, and also made a down payment of $250.00. She also dealt with Joe Smith. For a sales price of $1495.00, which with the dealer handling charge of $25.00, tag and title transfer fees, came to $1636.00, Ms. Youmans acquired a 1974 Buick that had been driven 78,482 miles. She agreed to pay the balance of $1380.00 in $25.00 weekly installments. On the vehicle registration certificate "GULF OOAST MOTORS" is shown as the "SELLER, FLORIDA DEALER, OR OTHER PREVIOUS OWNER," and as the first lienholder. Joe Smith, C. E. Pace, David J. Turner, Mark Turner and Lisa Russo signed receipts for various weekly payments she made. The day she bought the car it backfired on a test drive. Mr. Smith told her that it was the carburetor and that he would get a mechanic to fix it. Ms. Youmans is not an automobile mechanic; she works as a maid. She signed an "as is" disclaimer, which she did not understand. On March 16, 1984, she spoke to Joe Smith about fixing the car. He promised her repeatedly that he would arrange for a mechanic to fix it and told her not to take it to anybody else. She left the car parked at her home for more than two months, making weekly payments the while, on the strength of these assurances. On March 16, 1984 Ms. Youmans made application for a temporary license tag. A form application for vehicle registration was partially completed on April 19, 1984. Petitioner's Exhibit No. 4. Ms. Youmans asked Joe Smith to arrange for the car to be picked up and taken to the car lot, because she was afraid to drive it. After she had made the last in an unbroken series of weekly payments, on June 15, 1984, the car was towed. The next day Joe Smith told her to continue the weekly payments so that she could have the car back when she paid the mechanic's bill. About a week later the car "ran," and about a week after that she appeared with $155.00, enough to pay for the mechanic, for towing ($50.00) and to bring payments (with late charges) current. Mark Turner refused the money, pounded his fist on a table, and told her to leave. Still later she noticed that the car was no longer on the lot. Allen On March 24, 1984, Donald Gene Allen purchased a 1973 Volkswagen from a salesman named Smith, making a down payment of $300.00 and agreeing to weekly payments of $35.00 to retire a balance of $2180.00. He signed a form contract that had "GULF COAST MOTORS" at the top with "Charlie Pace" and "Mark Turner" printed underneath. Respondent's Exhibit No. 4. Nobody else signed the form contract, which provided, among other things: Any payment late will include a late charge of $5.00 for every three days late . . . . GULF OOAST MOTORS has full rights to repossess any vehicle with a payment three days late. If any vehicle is repossessed the buyer has up to 10 days to pay the vehicle off in full and a $100.00 repossession charge to redeem the vehicle. Respondent's Exhibit No. 4. Mark Turner and C. E. Pace witnessed Mr. Allen's signature on a form warranty disclaimer, which stated, "THIS USED MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY WARRANTY . . ." Respondent's Exhibit No. 3. A week and a half after he had acquired the Volkswagen, the transmission failed and Mr. Allen called for the car to be towed back to the used car lot. He asked that the car be repaired and the car was taken to a Volkswagen mechanic's shop. This shop refused to release the car to Mr. Allen without payment of the repair bill. He was refused, when he asked that his down payment be returned. Mr. Allen dealt only with Charlie Pace and Joe Smith and never spoke to the Turners. Hayes Willie Hayes, Jr. bought a car from Gulf Coast Motors in 1982 or 1983 for about $1200.00. He fell behind in his bi- weekly payments once in a while, but always let somebody know when he would be unable to make a payment. In May of 1984, when he was $60.00 or $70.00 behind, he told Mr. Pace that he would bring payments current in a week's time. He showed up at the used car lot with all but $20.00 of what he had intended to bring, but was told that he had to pay everything he still owed on the car, a balance of $420.00. Mark Turner asked him for the key to the car when it became clear that he could not pay. Mr. Hayes refused, got into his car and started to leave. Mark Turner got into another car and blocked his egress while another driver pulled another car in front of Mr. Hayes, penning his car. Eventually a Highway Patrolman arrived, wrote Mr. Hayes a ticket for having backed into the car Mr. Turner had placed in his way, determined that Mr. Turner had no judicial process authorizing repossession, and sent Mr. Hayes on his way. Motley Burtis O. Motley bought a 1980 Ford Granada from Gulf Coast Motors on October 11, 1984. He dealt with a Jerry Murph who signed an odometer mileage statement reciting that the odometer "now reads 131,527 miles . . . [and that] the odometer reading . . . reflects the actual mileage." Petitioner's Exhibit No. 6. In fact, however, the odometer read 131,528, understating the mileage by 99,999 miles, a point on which Mr. Motley, a retired carpenter, was confused. During negotiations he commented to the salesman, "I see the low mileage." Cataracts impair Mr. Motley's vision. He did not read the odometer mileage statement or the other documents he signed when he paid $500.00 down, traded in his old car, and undertook to retire a balance of $3206.75 with monthly payments of $70.00. He realized he was buying the car "as is," however, and signed a disclaimer to that effect. Two or three days after the purchase, Mr. Motley began having repairs done, first on the brakes: the front brakes pulled to the left and the back brakes "went haywire." Grease seals were replaced at K-Mart. New shock absorbers were needed. Mr. Motley decided that he had had enough. On the telephone he told one of the Messrs. Turner that he was going to stop making payments and that he would "turn the car in." On November 24, 1984, somebody took the car. Mr. Motley later saw it on the Gulf Coast Motors lot, but there was never any communication as to its disposition after November 24, 1984. Pugh On July 7, 1984, a Saturday, Marshall Everett Pugh bought a 1972 Toyota from David Turner purporting to act as a salesman for Gulf Coast Motors. Most of the paperwork he signed in blank but he was aware of the import of the form warranty disclaimer he signed, and acknowledged at hearing that he purchased the car "as is," after David told him that the car "ran good." At the time of the purchase he was aware that the driver's door did not open and that the ignition key was prone to stick in a way that kept the starter operating even after the engine was running. On the 9th or 10th of July, after he had taken the car to mechanics to be looked at, Mr. Pugh learned that only one cylinder was functioning properly. On July 10, 1984, he took the car back to the used car lot and asked Mark Turner where David was. Mark pointed out that Pugh had bought the car "as is," ending his remarks on an obscene note that precipitated a tussle. The fight ended with David pulling Pugh off Mark by the hair. Pugh left without the car and never heard further from the Turners or Gulf Coast Motors about the car. He had given them an erroneous address at the time of purchase and left town shortly afterward. Castello Under her then (married) name of Graves, Cathy Sheree Castello bought a 1979 Cougar from a salesman named Bill on the Gulf Coast Motors lot. He told her it was a good car. She had effected a few repairs when, two weeks after the purchase, she was told that the car needed a new engine, because the one it had was "totally blown." The car would only go about 30 miles per hour. She, too, had signed an "as is" warranty disclaimer. Ms. Castello returned the car to the lot where it was offered for sale while she and the used car lot personnel tried to reach a settlement. Without notice to her, the car was sold and somebody forged her stepfather's signature in transferring title to the new buyer. Before the final hearing in this case, she had settled her claim against respondents amicably.
