The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Some time after February 19, 1983, and before March 23, 1983, Wayne W. Hickey opened for business as an auto mechanic under the name Auto Tech at 2350 Fernwood Drive in Pensacola, Florida. He was employed by, but had no ownership interest in the auto repair business known as Motor Exchange that occupied the premises before him. After he had opened his own business, he undertook employment for Lloyd Linville, a principal of Motor Exchange, who asked him to repair a car that belonged to David H. Weinstein which Motor Exchange had been unable to repair. Mr. Hickey could not fix the engine knock, either, and was never paid for his work. While the car was in Mr. Hickey's custody, vandals did $700 damage to it. Mr. Hickey refused to repair this damage or pay Mr. Weinstein money to have it done elsewhere. On February of 1983, while still employed by Motor Exchange, Mr. Hickey signed a warranty on behalf of Motor Exchange covering an engine rebuilt for Jose L. Rodriguez. A week later Mr. Rodriguez discovered that the cam and the lifters were bad, and brought this to Mr. Hickey's attention. Mr. Hickey referred Mr. Rodriguez to Motor Exchange at their new location. The last time that Mr. Rodriguez and Mr. Hickey spoke before the hearing in this cause, Mr. Rodriguez told Mr. Hickey that all was well. At hearing for the first time, Mr. Hickey learned that other problems had developed with the engine since. After she got her income tax refund, Anita Diane Frye took her 1974 Chevrolet to Auto Tech on February 28, 1983. She considers the car hers even though it is registered in her boyfriend's name. He signed the work order authorizing respondent to rebuild the engine. Auto Tech worked on the engine and gave a "1 year or 15,000 mile warranty on engine against defective parts & workmanship accessories excluded." Petitioner's Exhibit No. 5. When Mr. Hickey returned the car after working on the engine, he told Ms. Frye, "You better buy a new set of back tires," because it would go so fast, he claimed. In fact, the car smoked from the time they got it back from Mr. Hickey and he was unable to correct the problem when they took it back for lifters to be installed or when they took it back the second time. The third time they took it back they found the shop closed and no indication of how to get in touch with Mr. Hickey. At the time of the hearing, the car had been driven less than 3,000 miles since the engine had been rebuilt, but the engine spat and sputtered and the car could not be driven faster than 20 or 30 miles per hour: "You sit in a cloud of smoke whenever you stop." After James Clyde Odom heard respondent's radio advertisement, he brought his 1974 Dodge truck to Auto Tech on May 3, 1983, to have the engine rebuilt. Mr. Hickey told him he would rebuild the engine "from the ground up" and guarantee his work. As agreed, Mr. Odom returned for the truck on May 7, 1983, paid Mr. Hickey $644.09 and received a written "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Mr. Odom had driven the truck approximately three miles when his wife, who was following in another car, honked her horn. Steam was rising from the engine. They turned around and went back to the garage where Mr. Hickey supplied a bolt that had been left out of the water pump housing. The Odoms set out again and made it all the way to Mrs. Odom's father's house, where they noticed oil leaking. They determined that a quart and a half had been lost. They took the truck back to the Auto Tech shop again and left a note describing the problem. A week later Mr. Odom picked his truck up from Auto Tech a third time and drove it about two and a half miles to a friend's house, where oil leaked from the truck again and formed a puddle in the friend's driveway. This time when Mr. Odom returned, Mr. Hickey said he could not work on it right away, that Mr. Odom would have to bring it back at Mr. Hickey's convenience, and he refused Mr. Odom's proposal that another mechanic he asked to repair the engine with the bill being sent to Mr. Hickey. The compression in the truck's engine ranged from 107 or 114 pounds in one cylinder to 160 pounds in another. Mr. Hickey also undertook to repair the brakes on the Odom truck, and was paid for this job. He did not turn the drums or replace the brake cylinders although he did install new brake shoes. The brakes did not hold after the work was done. On May 27, 1983, Ishmael White took a 1974 Dodge engine to Hickey for rebuilding. The job was to include "rings, mains, rod bearings, timing gear, timing chain, lifters, push rods, oil pumps, all new gaskets, complete valve job and" cam bearings. Petitioner's Exhibit No. 7. On June 1, 1983, Mr. White paid Mr. Hickey $624.75 for this work and he picked the engine up the next day. The head bolt had not been replaced. On June 10, 1983, the engine was reinstalled in Mr. White's pick-up truck. It made the whole truck vibrate. When Mr. White took it to be tuned, the mechanic said he could not tune it because the valves were not closing. When Mr. White reported this to Mr. Hickey, Mr. Hickey said he would not be able to work on the engine until June 15, 1983. On June 15, 1983, Mr. White left the truck with Mr. Hickey and returned to pick it up on June 21, 1983, as they had agreed. The truck was not ready then, so Mr. White inquired again on June 23, 1983. At that time Mr. Hickey told him that the water pump leaked and would cost $70 to replace, but Mr. White refused to buy a water pump from Mr. Hickey since a new one had been installed less than three months before he took the engine to Auto Tech. On July 12, 1983, Mr. Hickey told Mr. White that everything had been fixed except the water pump and that if he towed the truck away without buying another water pump the warranty was "no good." The warranty Mr. Hickey had earlier given Mr. White was a "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Petitioner's Exhibit No. 7. Mr. White took the truck nevertheless. Bolts were loose. A brand new air filter was wet. Four of the eight cylinders had little or no compression and the engine ran so rough the hood shook, but the water pump was not leaking. Mr. White took the truck elsewhere to be repaired at his expense. On April 2, 1983, James Fisher took his Ford pick-up to Mr. Hickey and Auto Tech and asked that a rebuilt 400 cubic inch engine be substituted for the 351 cubic inch engine it had at the time and that its C-4 transmission be replaced with a C-6. The Fishers retrieved their truck on April 14, 1983, and drove it home. The next day they set out on a camping trip. They had driven 20 miles when the engine "blew up." Smoke came back into the cab and billowed out from under the hood. Employees of Mr. Hickey came for the truck. On April 25, 1983, the Fishers left Auto Tech in the Ford truck a second time. The engine ran rough, the transmission "growled," and they spotted a stream of transmission fluid, so they turned around before they had gone a mile and drove the truck back to Auto Tech. On April 29, 1983, Mr. Hickey said everything was fine and the Fishers set out again. The transmission was better, but the engine was worse, and the car broke down near their son's place of business, a block or so from Auto Tech. The truck was taken back to the Auto Tech garage. Again on May 6, 1983, the Fishers set out in the truck and got all the way to Pace, Florida, this time, notwithstanding problems with the transmission. A mechanic in Pace discovered worn valve guides, worn rings and worn bearings; and that only one bolt attached the engine to the frame; and that the drive shaft had been jammed in without being properly fitted. The Fishers were unable to find Mr. Hickey after he closed down his Auto Tech shop. Without objection, the following affidavit was received in evidence at hearing: I Took The Engine To Wayne Hickey at Auto TECH to be Rebuilt. He was To Rebuild The Engine For $395.00 Plus Taxes, I Paind Him by check $414.75 I took The Engine Home and Installed it in The Car.The engine was Smokeing Real bad. I went back to Wayne Hickey with The Car and he informed me That The Engine Should be Ran For up To 500 miles If IT didn't stop smokeing & useing oil To bring it back. The Engine Froze up. I Towed The car back to AUTO TECH. Wayne Hickey said he would Need to Keep The Car for 3-4 days. My daughter called after 7 days and they haden't Touched The car. They Said to Call back ON The 16 July 83. My daughter Called back on The 16 July 83 and could get no anser, I called back on The 19th & the Recording Said The Phone was Temperoley out of order, I came over here to Auto TECH and talked to Wayne Hickey, 7-28-83. He had not done anything to the Engine, I ask him To give me my Money back and I would get The Engine Fixed Myself. He stated For me to Take The car Home, Take the Engin back out and bring the Engine back To him and He would Fix IT, he didn't say anything about Removeing The Engine when He Told me To bring The car back to Him, A Mr. Watha L. Clayton wrote out the foregoing statement on a form furnished by petitioner's office. The form affidavit was notarized July 28, 1983.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 2d day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 2d day of December, 1983. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Wayne Hickey Motor Exchange 5672 Avondale Road Pensacola, Florida 32506 Curtis A. Golden, State Attorney First Judicial Circuit of Florida Post Office Box 12726 190 Governmental Center Pensacola, Florida 32501
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
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 The issue is whether a Notice of Intent to Levy that Respondent issued pursuant to Section 213.67, Florida Statutes (2008),1 is improper because either the $62,482.96 in Petitioner's four bank accounts belongs to third parties or the doctrine of equitable estoppel prevents collection.
Findings Of Fact Petitioner is engaged in the used car business in Florida. Petitioner's principal place of business is in Sarasota, Florida. Petitioner’s principal and qualified representative is Mr. John T. Early, III. Mr. Early is a licensed attorney in the State of Connecticut, but Mr. Early engages in the used car business rather than the practice of law. Respondent is the state agency responsible for administering the sales and use tax in Florida. The instant proceeding is the second of two cases between Petitioner and Respondent. The first case between the parties is identified in the record as Colorcars Experienced Automobiles, Inc. vs. Department of Revenue, DOAH Case No. 08-005442 (Colorcars 1). On June 15, 2005, Respondent issued a tax assessment against Petitioner for $245,057.07. The assessment was for tax, penalty, and accrued interest as of the date of the assessment. Colorcars 1 began when Petitioner requested an administrative hearing to contest the tax assessment, and Respondent referred the request to DOAH to conduct the hearing. Colorcars 1 became final and non-reviewable on February 13, 2009, when Petitioner voluntarily dismissed its challenge, “with prejudice.”3 After Colorcars 1 became final agency action, Respondent recorded a tax warrant for $319,512.05, including penalties and additional accrued interest.4 Petitioner admits it owes taxes, penalties, and interest in an amount that exceeds the funds in the bank accounts evidenced in this proceeding. The procedure Respondent utilized to freeze the bank accounts of Petitioner was appropriate, including the decision not to provide Petitioner with prior notice of the collection process. On April 21, 2009, Respondent sent a letter to Liberty Savings Bank, in accordance with Subsection 213.67(1), directing the bank to freeze any accounts belonging to Petitioner. On April, 28, 2009, Liberty Savings Bank responded that four accounts were frozen with an aggregate balance of $62,482.96. The four frozen account balances are identified below by account number and by the account title as they appear on the bank account statements: (a) CKG Acct. #2844006582 (Named “Colorcars Experienced Automobiles Acquisition Account”) $53,114.37 (b) CKG Acct. #2844006604 (Named “Colorcars Experienced Automobiles Management Account”) $4,050.19 (c) CKG Acct. #2844006671 (Named “Colorcars Experienced Automobiles Client Funds”) $5,243.03 (d) CKG Account #2844006817 (Named “Colorcars Experienced Automobiles Merchant Account”) $75.37 On April 29, 2009, Respondent served Petitioner with the Notice pursuant to Section 213.67. Respondent did not notify Petitioner in advance of the account freeze because Respondent had a reasonable basis to believe prior notice would jeopardize Respondent's ability to collect the unpaid funds. The assessment had not been paid even though the assessment had already become final and non-reviewable. Respondent was legitimately concerned that the money could be withdrawn if advance notice were given. Apart from the particular facts and circumstances in this case, prior notice is inconsistent with Respondent's administrative policy. Mr. Early made attempts to remove the freeze from the accounts. Mr. Early informed Mr. Michael David, Respondent’s collections agent: (a) that three of the frozen accounts in controversy were “trust accounts”; and (b) that the three accounts contained money that did not belong to Petitioner. Mr. David consulted with his supervisor, Mr. Kenneth Sexton. The two agents did not consider Petitioner’s allegations to be sufficiently documented. Respondent kept the collection freeze in effect. The parties have since stipulated on the record that none of the four frozen accounts are “trust accounts.” The account registration statements show that the accounts were opened as “For-Profit Business/Corporation” accounts rather than as “trust” or “fiduciary” accounts.5 Prior to commencement of the collection action, Mr. Early had discussed payment of the tax assessment in Colorcars 1. Mr. Early alleges that Mr. David promised not to proceed with collection action while settlement discussions were ongoing in Colorcars 1. Mr. David denies having made that statement. Mr. Sexton is without knowledge of any such statement or agreement. The fact-finder finds the testimony of Mr. David and Mr. Sexton to be credible and persuasive. The testimony is supported by the notes of the meetings. Petitioner made no payments toward the obligation due in Colorcars 1, and the tax due was in jeopardy when Respondent began collection. Collection without prior notice to Petitioner was reasonably justified under the circumstances and is consistent with Respondent's administrative policy. Petitioner stipulates in its signed response to the Second Requests for Admissions that the funds in the disputed accounts are “commingled” and that the commingling is “extensive.” Petitioner failed to provide a sufficient accounting. A preponderance of the evidence does not provide sufficient source records to enable Respondent's expert or the trier of fact to make a determination that discrete and identifiable client funds might remain within the extensively commingled accounts that are in dispute. Petitioner has had ample time and discovery to satisfy its factual burden of proof in this case. In the February 5, 2010, Order granting Respondent’s motion to compel, as evidenced in the motion hearing Transcript, the ALJ ordered Petitioner to produce legible documents during a defined six-month period that included portions of two tax years (the six-month period). The Order granting the motion to compel was cobbled together in a lengthy hearing with the parties, as was the six-month period, and was intended to enable the trier of fact to identify discrete client funds in the three disputed accounts and to promote an amicable settlement of this case between the parties so as to avoid the need for a hearing. Petitioner has failed to provide legible documents or factually complete documents that promote either intended purpose of the motion hearing.6 Petitioner provided some evidence that client funds, from five of Petitioner’s customers, were deposited at various times into extensively commingled accounts. However, a preponderance of the evidence does not show that identifiable funds belonging to those clients remain in the extensively commingled accounts. The fact-finder finds the testimony of the Respondent's expert to be credible and persuasive. The funds have been so completely and extensively commingled, and the account records produced by Petitioner were so lacking, that no discrete funds can be identified. Only a small percentage of the deposits shown on the bank statements for the six-month period are from sources that can be identified. For example, the “Acquisition Account,” which contains most of the frozen funds in dispute, lists 152 deposits. However, only three deposits can be identified by source. The three identified deposits total $46,725. By contrast, the unidentified deposits total $1,625,634.06. Petitioner’s pattern of only identifying the source of a small percentage of the deposits is consistent for each account. Of the $37,711.56 deposited into the “Merchant Account” during the six-month period, not one of the deposits was from an identifiable source. Of the $166,294.27 deposited into the “Client Funds” Account during the six-month period, only $38,146 was from identifiable sources. None of the funds contained in the frozen bank accounts can be separately identified by a preponderance of the evidence as belonging to any party other than Petitioner.
The Issue Whether the Respondent knowingly sold rebuilt vehicles without disclosing in writing to the purchaser, customer, or transferee that the vehicles were previously titled as rebuilt vehicles.
Findings Of Fact The Respondent, Charles R. Kuhn, III, is and was at all times relevant to the allegations in the administrative complaint a licensed independent motor vehicle dealer in Florida. The Respondent did business in the name A-1 Auto and Truck Center and was located at 12180-1 Phillips Highway, Jacksonville. The Department is the state agency authorized by statutes to regulate licensed independent motor vehicle dealers and to maintain the titles of motor vehicles in the State of Florida. Pam A. Albritton testified about her experiences buying a vehicle from the Respondent. On August 22, 2003, as reflected by the date on the installment sales contract, Albritton purchased a 2000 Volkswagen (VW), VIN (Vehicle Identification Number) 3 VWSD 29 M1YM 197846, for $8,281.80. The Respondent did not at any time provide Albritton with a written statement that the vehicle she purchased, VIN 3 VWSD 29 M1YM 197846, hereafter the Albritton vehicle or car, was a rebuilt vehicle and had been previously titled as a rebuilt vehicle. The Respondent did not tell Albritton that this vehicle was a rebuilt vehicle. Albritton did not see the certificate of title to the vehicle until after the sale of the vehicle. Albritton took the car to an authorized VW dealer in November of 2003 because it was not shifting gears properly. The dealer found that the vehicle had suffered extreme damage from an accident and needed extensive repairs to the engine control system and the airbag in order to make the car safe to drive. The dealer told Albritton what had been found and advised her not to drive the car until it had been repaired. Albritton confronted the Respondent about the problems with the vehicle, and the Respondent gave her a handwritten "warranty" dated November 20, 2003. Pursuant to this agreement, Albritton took the car to the Respondent to have the seatbelts fixed; however, the repairs did not actually make the belts safe because the seatbelt retractor mechanism would not lock. In December of 2003, the wheel bearings on Albritton's car broke, and she contacted the Respondent about getting the car fixed. She was informed that the Respondent was away for two weeks, and nothing could be done until he returned. Needing her car for transportation in her work, she paid $200 to have the wheel bearings repaired. Pursuant to a mediation agreement, Albritton agreed to settle her complaint against the Respondent on the basis that he would get her a comparable vehicle. The Respondent was supposed to contact Albritton within 30 days of the mediation but failed to do so. The records introduced at hearing show that Albritton's vehicle had been re-titled as a rebuilt vehicle. Such a title indicates that the vehicle in question had been written off as an insurance loss and the original title cancelled or destroyed. Thereafter, the vehicle was repaired, and the person making the repair obtained a new title, which when issued, showed that the vehicle was rebuilt. Aylwin S. Bridges testified regarding his purchase of a VW from the Respondent. On or about June 14, 2003, Aylwin S. Bridges, purchased a 2000 VW, VIN 3 VWTE 29 MXYM 135556, from the Respondent for $11,555.00. Neither prior to nor at the time of the sale did the Respondent provide Bridges a written statement that the 2000 VW, VIN 3 VWTE 29 MXYM 135556, was a rebuilt vehicle. The Respondent did not tell Bridges that the car he was purchasing was rebuilt. The records introduced at hearing show that the Bridges' car had been re-titled as rebuilt. Bridges did not see a certificate of title to the vehicle prior to the sale of the vehicle. The Bridges' vehicle had extensive mechanical problems. For example, the engine control module had been spliced into the car and several codes had been deleted from it; the seat belts would not work; and the horn would not work. When Bridges sought to trade the vehicle, he found that the most he was offered for the car was only $2,500 because it was rebuilt. The Respondent testified in his own behalf. He did not deny having failed to disclose to Albritton and Bridges in writing prior to selling them their cars that the vehicles had previously been titled as rebuilt vehicles. The Respondent introduced a general disclaimer, Respondent's Exhibit 7, which was provided to Albritton and Bridges. This disclaimer states that the purchaser is buying a used car and that used cars may have any one or more of the listed problems. The Respondent testified that he knew the cars were rebuilt, but felt he had complied with the legal requirements of disclosure by providing the buyers with the aforementioned disclaimer. The specifics of the disclaimer are discussed in the Conclusions of Law for purposes of continuity, but are findings of fact.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its final order finding that the Respondent violated Section 319.14, Florida Statutes, on two occasions; fine Respondent $1,000 for each violation; and suspend the Respondent's license for six months for each violation, said suspensions to run consecutively, and that payment of the fine be a condition precedent to re-issuance of a license. DONE AND ENTERED this 1st day of February, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 1st day of February, 2005. COPIES FURNISHED: Charles Patrick Kuhn, III A-1 Auto and Truck Center 12180-1 Philips Highway Jacksonville, Florida 32256 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Suite A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Suite B439 2900 Apalachee Parkway Tallahassee, Florida 32399
Findings Of Fact Mr. Richard Hughes, investigator for the Department, received approximately twelve complaints from various citizens in the Broward County area based on alleged faulty workmanship by the Petitioner. (See State's Composite Exhibit No. 2.) Customer invoice receipts reveal that Petitioner used State Registration No. 2739 on all customer invoice receipts. Evidence reveals further that Petitioner was at one time, the President of King Television, Inc., which was assigned State Registration No. 2739, but that registration expired some time during 1974. William C. Kimberl, Jr. the Division's Director, by sworn affidavit dated December 7, 1976, stated that he, as custodian of the records for the Bureau of Electronic Repair Dealer Registrations, made a search of such records and found no record that Petitioner's business, which is located at 1107 N.W. 15th Place in Ft. Lauderdale, Florida, was registered. See State's Exhibit No. 1. During August of 1976, Petitioner was charged with operating a business without a registration and for obtaining property in return for worthless checks and that he pleaded nolo contendre to the charge of operating a business without a registration and adjudication was withheld on the charges of obtaining property in return for worthless checks. Petitioner was placed on probation for eleven months. Additionally, the court required that Petitioner check all TV sets involving the complaints which had been received by the state agent (Mr. Hughes) and repair them to the customers' satisfaction. Thereafter and subsequent to repair, Petitioner was to receive a signed invoice from all disgruntled customers stating in essence that they were satisfied with the TV set as repaired. As to those complainants who refused to sign such an invoice, Petitioner was required to contact Mr. Hughes who would in turn independently check the set to determine whether or not it was operating properly and that, if such was the case, Petitioner would not be required to make further repairs to the set. With the exception of approximately two complainants, it suffices to say that Petitioner complied with the court's ruling regarding the repair of the TV sets. One complainant, Mrs. George Pollack of Hallendale, testified that she had made repeated calls to Petitioner in an effort to obtain her remote control selector to no avail. Petitioner testified credibly that he had ordered the part to repair the remote control selector from the manufacturer and that as soon as such parts were received, he would repair and return the selector to Mrs. Pollack. Shirley Herbstman of Hollywood, contacted Petitioner during April, 1976, to have her set repaired. She paid approximately $102.00 to have tubes, transformer, and a remote control repaired, and when the set was returned, she contends that the same problem existed. Thereafter she called Ace TV and a yoke was replaced at her home for a cost of approximately $75.00. See Respondent's Exhibits No. 3 and No. 4. The Petitioner's Defense. Petitioner testified that he received assurances from investigator Hughes that it was proper for him to operate under his old registration number i.e., No. 2739 until such time as he obtained his new registration. According to the evidence, it appears that this assurance was given during late 1975 at which time Hughes furnished Petitioner with an application form and instructed him to immediately file it with the Division. Evidence also reveals that Petitioner did not submit his application to the Department until August 9, 1976. By letter dated August 10, 1976, the Bureau Chief of Electronic Repair Dealer Registration advised Petitioner that his application for registration was being returned because of certain omissions on his application including his failure to tender the $30 application fee, the sales tax permit number or a receipt for such payment and a certification from the Secretary of State's office that the corporation was in good standing. Thereafter by letter dated October 15, 1976, Petitioner was further advised that after a review of all available facts known to the Division, his registration was not being validated pursuant to Chapter 468.155 and 468.159(1)(a), Florida Statutes. Petitioner testified further that he had not operated as a TV repairman other than to repairs sets per the terms of a court order and that subsequent to August, 1976, he had not, in any manner, held himself out as a registered repairman. He testified that once his license was rejected, he had all phones disconnected and that he was led to believe that his son would take over the business. As events developed, however, his son left the state.
Recommendation Based on the above findings of fact and conclusions of law I recommend that the allegation that the Petitioner violated his probationary status by operating without being registered be dismissed. Based on the remaining violations as found above, I recommend that the Respondent's action in denying Petitioner his registration certificate as an electronic service dealer be sustained. DONE and ENTERED this 18th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Staff Attorney Department of Business Regulations Division of General Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Gerald H. Birnesser, Esquire 2119 Hollywood Boulevard Hollywood, Florida 33020
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony and documentary evidence presented at the final hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following Findings of Fact are made: Mr. Arthur is the owner of Mustang Speed and Restoration (MS&R), a motor vehicle repair shop. MS&R’s physical address is 12545 44th Street North, Suite D, Clearwater, Florida. 4 Exhibit 9 is a composite exhibit of seven black and white photocopied photographs. Three of the photographs were identified as sand in the back seat of the Jeep; two photographs were of the Jeep parked; one photograph identified a pair of “pink” panties; and one photograph contained two “ZAFUL FOREVER YOUNG” tags. Only the photographs of the parked Jeep and the tags were clear. Mr. Arthur filed a motor vehicle repair registration application to renew MS&R’s license in March 2019. The application contained MS&R’s registration number as MV87835. Additionally, the application contained the following “Application Certification:” I certify that this applicant is aware of and complies with all of the requirements of ss. 559.901-559.9221, F.S., including the repair estimate and disclosure statement required to be given to customers, and I am empowered to execute this application on behalf of the above named [sic] entity or individual. Mr. Arthur’s name was printed below this statement along with his signature (which Mr. Arthur acknowledged during his testimony), his title as “owner,” his phone number, and the date: March 10, 2019. At all times relevant to this case, MS&R held a valid motor vehicle repair shop license. Sometime in 2019, Victor Oddo bought a 2002 Jeep Liberty (Jeep) from M and K Auto. Mr. Oddo secured his vehicle license plate, numbered FL- NBMD06, on the Jeep. Shortly after the purchase, the Jeep was not running smoothly. Mr. Oddo contacted M and K Auto, explained the problem, and he was directed to Respondent. Testimony at hearing did not adequately address the extent of the problem, other than the check engine light was coming on. During another appointment, Mr. Oddo paid Respondent $100 for a valve gasket repair. When shown a copy of the MS&R invoice for the valve gasket repair, Mr. Arthur confirmed it was an MS&R invoice but, testified he had “never seen that invoice, no. I don’t know anything about a valve gasket repair.” In January 2020, the Jeep’s check engine light kept coming on. Mr. Oddo brought the Jeep to Respondent. Mr. Arthur sent Mr. Oddo to a different repair shop, Carl and Sons Repair Shop (C&S). Based on information provided, Mr. Oddo believed the repair would cost $1,000 if done by C&S. On Wednesday, January 15, 2020, Mr. Oddo returned his Jeep to MS&R after Mr. Arthur stated he could do the repair for $380. The Jeep remained in Respondent’s possession until February 6, 2020, a period of 22 days. Mr. Oddo communicated with Mr. Arthur via telephone and text messages. Over the course of the 22 days the Jeep was at MS&R, Mr. Oddo sought information about the status of the Jeep’s repairs and when it would be returned to him. Respondent did not provide Mr. Oddo a written estimate for any work to be completed on the Jeep. At no time did Mr. Oddo waive the preparation of a written estimate. Mr. Arthur repeatedly claimed that the repair would be paid for by M and K Auto, as “the repairs were not done for the - - Mr. Oddo, they were done for the lot.” Mr. Oddo did not authorize Respondent or any of its employees to use his Jeep for personal use. Between January 15, 2020, and February 6, 2020, Mr. Oddo never took physical possession of his Jeep. On Thursday, January 23, 2020, at approximately 1:10 p.m., Mr. Oddo took two photographs of his Jeep parked in front of a Speedway store. The Jeep’s license plate confirmed it was Mr. Oddo’s vehicle. (Pet. Ex.9, pp 31 & 32.) This Speedway store is a block or more away from MS&R. On February 6, 2020, Mr. Oddo picked up the Jeep from MS&R. Respondent did not provide Mr. Oddo an invoice or billing statement for any work that was completed on the Jeep. After picking up the Jeep on February 6, 2020, Mr. Oddo received a parking ticket (Ticket One) in the mail. Ticket One was issued by the City of Tampa for a parking infraction at Ben T. Davis beach.5 The parking 5 A round-trip trek from MS&R’s location to Ben T. Davis beach could not be more than 40 miles. infraction occurred on Saturday, January 18, 2020, at approximately 1:00 a.m., while the Jeep was in Respondent’s possession. The Jeep’s license number on Ticket One confirmed it was Mr. Oddo’s vehicle. Mr. Oddo communicated with Mr. Arthur about Ticket One, and believed Mr. Arthur would pay the $46.00 fine. Later, Mr. Oddo received another parking ticket (Ticket Two) in the mail. Ticket Two was issued by the City of Clearwater for an expired parking meter at a Clearwater beach.6 The parking ticket was issued on January 18, 2020, at 5:11 p.m., while the Jeep was in Respondent’s possession. The Jeep’s license number on Ticket Two confirmed it was Mr. Oddo’s vehicle. Mr. Oddo did not communicate with Mr. Arthur about Ticket Two as by that time, Mr. Oddo had filed a complaint with Petitioner. Petitioner’s Exhibit 9, pages 27 through 29, purports to show sand on the back seat of Mr. Oddo’s Jeep. While it is logical to assume that a vehicle may have sand in it after a trip (or two) to the beach, or for that matter while in Florida as a whole, the black and white photographs are not clear or concise, but are unnecessary. That the Jeep was at each beach is established by the two tickets. After receiving the second ticket, Mr. Oddo checked his Florida Sunpass transponder7 account and discovered two charges while the Jeep was at MS&R for repair. On Thursday, January 23, 2020, at approximately 11 a.m., Mr. Oddo’s transponder account was charged $1.07 for his Jeep traveling southbound on the Bob Graham Sunshine Skyway bridge (Skyway). Later, at 12:25 p.m., Mr. Oddo’s transponder account was again charged $1.07 for the Jeep returning northbound on the Skyway. Mr. Arthur testified that Mr. Oddo’s Jeep was taken for a round-trip test drive to Sarasota, Florida, on January 23, 2020. The round-trip test drive 6 A round-trip trek from MS&R’s location to a Clearwater beach could not be more than 40 miles. 7 Mr. Oddo referred to this as his “Sunshine Skyway pass.” was approximately 82 miles in distance. Mr. Arthur attached a scanner to the Jeep to determine “what the repair needed to be done.” The test drive was also to pick up “a check for a different repair for a car dealer.” Respondent described this test drive using the phrase it “killed two birds with one stone.” Approximately 45 minutes after the Jeep returned from the Sarasota test drive, the Jeep was photographed at the Speedway store front. Mr. Arthur claimed the Jeep was on empty and had to be filled with gas. As provided in paragraph 11 above, Petitioner’s Exhibit 9, pages 31 and 32, are pictures of the Jeep parked in front of the Speedway store, not at a gas pump. Prior to reclaiming his car, Mr. Oddo was led to believe from Mr. Arthur that the Jeep’s timing chain and the check engine light had been repaired. However, that was not the case. Although the timing chain may have been repaired or replaced, the check engine light stayed on. When Mr. Oddo reclaimed his Jeep on February 6, 2020, he claimed there were “approximately a thousand miles added to my odometer.” He failed to substantiate this claim with evidence of the odometer reading on the Jeep when he dropped it at MS&R, compared to the odometer reading when he reclaimed the Jeep. Further, Mr. Oddo confused the issue when he testified: My trip odometer only had 16 miles on it, and I always reset my trip odometer when I fill up my gas tank. My gas tank was empty with 16 miles, so I - - I don’t understand why the trip odometer has to be reset for a test drive at all. Mr. Arthur admitted he never filled out or provided an estimate or invoice for the repair work to Mr. Oddo’s Jeep. Mr. Arthur testified instead that he was under the impression the repair work would be paid for by the car dealer from whom Mr. Oddo bought the Jeep. Mr. Arthur testified: We have an open contract, we are - - no shop under any of the motor vehicle repair under Mr. Williamson,[8] or anybody else, requires the car dealer to come out here and sign the invoice on every job. * * * And no shop that does car dealer wholesale work, auto work, auction work, has the customer - - the car dealer come down out of his office and sign a repair order; it’s a blanket contract, verbal contract. We repair them, they pay their bills, and everybody’s happy. * * * Just in rebuttal, there’s not one car dealership, one repair shop in the world that gets the car dealer or the auction to sign an invoice on every single job. It’s not possible. They’re not going to come down out of their car lot to come down here and sign every - - it’s a blanket contract, verbal contract valid under the State of Florida. Petitioner did not present any disciplinary history regarding Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order that: Finds Respondent guilty of violating section 559.920(3), (12), (13), and (17), as alleged in the AC; Imposes an administrative fine of $4,000; and Directs Respondent to cease using consumers’ vehicles for unauthorized business. DONE AND ENTERED this 25th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2021. Robert J. Arthur Robert J. Arthur, d/b/a Mustang Speed & Restoration 12545 44th Street North, Suite D Clearwater, Florida 33762 Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Genevieve Hall, Esquire Department of Agriculture and Consumer Services 407 Calhoun Street Tallahassee, Florida 32399 Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact Respondent is a non-instructional employee of the School Board and has been employed by the School Board of Brevard County for approximately nine (9) years. Respondent is a small engine mechanic and is assigned to the Maintenance Division of the School Board. Respondent's duties are to repair and maintain lawnmowers, edgers and other equipment in the North and Central areas of the Brevard County School District. Respondent was assigned School Board Vehicle No. 271 for transportation during working hours. Vehicle No. 271 is a pickup truck with distinctive School Board markings and a county government license tag. No other person was assigned the use of Vehicle 271. Three (3) sets of keys were maintained for Respondent's vehicle. One set was assigned to Respondent, one set is kept by the Maintenance Division in a key locker and one set is kept by the School Board Vehicle Maintenance Shop on State Road 520 in Cocoa, Florida. On or about February 27, 1989, Leon Cowling, Assistant Superintendent for Facilities and Support Services received a telephone call from Assistant Superintendent, Jerry Copeland, concerning Vehicle 271. Mr. Copeland had been contacted by two civilian employees from Patrick Air Force Base who stated that on or about February 22, 1989, they had seen Vehicle No. 271 in the Cape Canaveral area being driven in an erratic manner by a person holding a pistol and a large amount of cash. Mr. Cowling telephoned the Maintenance Department and relayed this information to Johnny Romans, Maintenance Coordinator, who confirmed that Vehicle 271 was assigned to Respondent and was parked in the maintenance yard. Respondent was on sick leave that day and Cowling asked Romans to secure the truck. Romans checked Vehicle 271 and found it locked. He went to the key locker for the extra set of keys but found them missing. Romans then called the Vehicle Maintenance Shop for their set of keys but those keys were also missing. Romans decided to take the matter up with his supervisor, Henry Hartrich, the next day and left Hartrich a memo on the incident. On or about February 28, 1989, Henry Hartrich returned to work from a conference and read the memo. Hartrich looked in the locked vehicle and observed several key rings and keys hanging on knobs on the dash board and on the console. Hartrich asked the locksmith, Bob Dunkinson, to open the vehicle and bring him all keys found inside. Dunkinson unlocked the vehicle and delivered the keys to Hartrich. Hartrich then asked Dunkinson to identify the various keys found in the vehicle. Dunkinson identified the keys and determined that one ring contained keys to the truck, as well as, keys to Mr. Hartrich's office, Mr. Buckner's office, Bobby Young's office, the warehouse, and the big forklift in the maintenance yard. Respondent was not assigned any of these keys except the truck keys. On March 6, 1989, a meeting was scheduled by the Maintenance Division to discuss the reported sighting of Respondent with a handgun and money in the School Board vehicle. Present at the meeting were the two civilian employees from Patrick Air Force Base who reported the incident, Mr. Cowling, Mr. Hartrich, Mr. Romans, Mr. Buckner and Respondent. At the meeting, Respondent was identified by the Air Force employees as the person they observed in Vehicle 271. Respondent denied having a handgun or cash in the vehicle. The Air Force employees were dismissed from the meeting and Mr. Hartrich then confronted Respondent with the keys found in his School Board vehicle. At first Respondent denied the keys were his, but then admitted that they were. Mr. Cowling suspended Respondent for the remainder of March 6 and March 7 with pay. On March 8, 1989, Respondent was recommended for termination of employment for misconduct for having unauthorized keys in his possession and suspended without pay. The School Board's Maintenance Division is entrusted with millions of dollars of equipment, tools and other public property. Theft of School Board property from the Maintenance Division is a serious problem and access to the areas where the property is stored is strictly controlled. Keys to the equipment storage areas and offices in the Maintenance Division are assigned only to those employees who require access to these areas. Respondent was not assigned the keys to the offices in the Maintenance Division or the warehouse and forklift. He had no reason to have those keys in his truck. Respondent's possession of the unauthorized keys was a serious violation of School Board policy. There have been documents and property stolen from the Maintenance Division in the past several years. The area from which these items were taken were secured by lock and key. Keys to the offices of Mr. Buckner, Mr. Hartrich, and the warehouse were among those discovered in Respondent's vehicle. The unauthorized keys in question were in Respondent's locked vehicle. Respondent was not assigned these keys or authorized to have them in his possession. Respondent was the only person who drove Vehicle 271. There was no evidence presented that any other person had the opportunity or motive to place the keys in Respondent's truck. Respondent did not present any evidence that showed the existence of a conspiracy by his immediate supervisor, Ed Buckner, or others to place the keys in his truck or to cause his termination from employment. Neither the Respondent's testimony nor that of his witnesses showed bias against the Respondent nor motive on the part of any of his supervisors to conspire against him.
Recommendation Based on the findings of fact and conclusions of law set forth herein, it is recommended that Respondent's suspension, effective March 8, 1989, be upheld and that he be terminated from employment with the School Board of Brevard County. DONE AND ENTERED this 30th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th day of November, 1989. COPIES FURNISHED: Burton J. Green, Esquire Post Office Box 320087 Cocoa Beach, Florida 32932-0087 William C. Walker, Jr., Esquire 1260 S. Florida Avenue Rockledge, Florida 32955 Harold T. Bistline, Esquire Building I, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Abraham L. Collinsworth Superintendent School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955 Hon. Larry C. Williamson, Chair School Board of Brevard County 1260 S. Florida Avenue Rockledge, Florida 32955
