The Issue Whether the application of Petitioner for registration as an electronic repair dealer should be denied.
Findings Of Fact Petitioner Jack Resnick d/b/a Smart Service petitioned for an administrative hearing upon receipt from the Respondent of a Notice of Intent to Deny License or Registration. The hearing was scheduled for November 27, 1978 at 2:00 p.m. in Tallahassee, Florida. Prior to the hearing the parties requested that the Hearing Officer write a Recommended Order upon submission of "Stipulation of Facts and Questions of Law" filed jointly by the parties, copy of which is attached hereto and made a part hereof. The instruments filed in this case reflect that in February, 1978 Petitioner Jack Resnick applied to the Respondent, Division of General Regulation, for an electronic repair dealer registration under the provisions of Chapter 468, Florida Statutes. In April, 1978 the Respondent notified Petitioner of its intent to deny said application for registration for the reason that applicant Jack Resnick intended to employ one Arthur Resnick as a repair work person In the business. Previously, in 1976 Arthur Resnick had been denied a registration certificate as an electronic service dealer by the Respondent, having been determined to be unfit and ineligible to be registered as an electronic repair service dealer. The Recommended Order entered in that cause, which was adopted as Respondent's final order, made the following; findings of fact: Arthur Resnick caused to be advertised in local (Florida)newspaper advertisements which would the public believe Arthur Resnick Television Repair Service was registered with the Bureau of Electronic Repair when, in fact, it was not. Arthur Resnick had been asked to disclose on his application for registration whether he had been convicted of a felony, misdemeanor, or any infraction other than traffic viola- tions to which Arthur Resnick answered "no" when, in fact, Arthur Resnick had been convicted of three counts of theft by deception involving the repair of television sets by the Court of Common Pleas in Montgomery County, Pennsylvania. The Hearing Officer concluded that: The acts and conduct of the Petitioner in operating without a registration; advertising in a leading and deceptive manner; making false statements as an inducement to the public to authorize repair, and his failure to answer truthfully to certain questions on his sworn application for registration is good and sufficient cause for the director of the Department of Business Regulation, Division of General Regulations to deny the Petitioner a registration certificate as an electronic service dealer. The order of the Respondent adopted the Recommended Order noting that it had received no exceptions to the Recommended Order from either party and thereupon denied the application for registration as an electronic service dealer filed by Arthur Resnick. The application of Petitioner Jack Resnick indicates that he is to be the sole proprietor of the business Smart Service. It indicates that Arthur Resnick, who has the same address as the Petitioner, is to do repair work with a possible employee named Jerry Cohen. Respondent gave no other reason for the denial of Petitioner's application except for the indicated employment of Arthur Resnick.
Recommendation Retract the Notice of Intent to Deny License or Registration which was based on the fact that Arthur Resnick was the prospective employee of the Petitioner. Grant Petitioner's application for registration as an electronic repair dealer providing he presently meets the requirements of the Respondent. DONE and ENTERED this 20th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David M. Hudson, Esquire Deputy General Counsel Depariment of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Alexander M. Siegel, Esquire 1303 North State Road 7 Margate, Florida 33062 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF GENERAL REGULATION DEPARTMENT OF BUSINESS REGULATION JACK RESNICK and SMART SERVICE, Petitioner, vs. CASE NO. 78-1687 DEPARTMENT OF BUSINESS REGULATION, DIVISION OF GENERAL REGULATION, Respondent. /
The Issue The issue in this case is whether Respondent should be sanctioned for failure to renew his registration as a motor vehicle repair shop for the current year.
Findings Of Fact Pursuant to the Florida Motor Vehicle Repair Act, Sections 559.901 through 559.9221, Florida Statutes, the Department regulates the repair of motor vehicles in this state. Mr. Flowers held a motor vehicle repair shop license issued by the Department which was valid through February 8, 2000. On January 9, 2000, Mr. Flowers was provided with notice that his license was required to be renewed by February 8, 2000. In order to have his license renewed, Mr. Flowers was required to pay a renewal fee of $50.00. He did not pay the renewal fee by the due date. During the period January 9, 2000, through September 21, 2000, in a continuing effort to persuade Mr. Flowers to renew his license, the department sent Mr. Flowers four letters, made three visits to the premises, and contacted the business at least nine times telephonically. Subsequent to his failure to renew his license, Mr. Flowers has continued to operate his vehicle repair facility and has, on at least three occasions, operated his motor vehicle repair shop by working on motor vehicles for compensation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of operating a motor vehicle repair shop without a license on three occasions, imposing a fine of $3,000, and ordering the Respondent to cease and desist engaging in the repair of motor vehicles. DONE AND ENTERED this 22nd day of November, 2000, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 22nd day of November, 2000. COPIES FURNISHED: Howard Flowers Tallahassee Truck Service 3321 Garber Drive Tallahassee, Florida 32303 Harold McLean, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Petitioner seeks to have the title to a specific motor vehicle cancelled and reissued to himself. The title at issue is currently in the name of John W. Klingerman. The central issue before the Hearing Officer is whether the title at issue was "improperly issued" by the Department so as to require cancellation of the certificate of title pursuant to Section 319.25(1), Florida Statutes. It was clear from the nature of the relief sought by the Petitioner that the disposition of this case might adversely affect the substantial interests of John W. Klingerman, the person to whom the disputed certificate of title is presently issued. Accordingly, an order was issued requiring that Mr. Klingerman be notified of the pendency of this case and of his right to file a petition to intervene in this case. Mr. Klingerman was so notified more than two months prior to the final hearing in this case. Mr. Klingerman did not seek to participate in this case. The only witness at the hearing was the Petitioner. Joint Exhibits 1 and 2 were received in evidence by stipulation of the parties. Petitioner's Exhibits 5 and 10 were received in evidence. Petitioner's Exhibit 9 was received with the caveat that it might later be disregarded by the Hearing Officer if, upon further consideration of the issues, the Hearing Officer determined it was not relevant. The Hearing Officer reserved ruling on the admission into evidence of Petitioner's Exhibits 8 and 12. Petitioner's Exhibits 1, 2, 3, 4, 6, 7 and 13 were rejected, but Petitioner was permitted to proffer them for inclusion in the record as rejected exhibits. Petitioner's Exhibit 11 was withdrawn by Petitioner. Respondent's Exhibit 1 was received in evidence. Rulings on Petitioner's Exhibits 8, 9 and 12 Upon consideration of all of the legal issues in this case, as set forth in the Conclusions of Law hereinafter, it is clear that Petitioner's Exhibits 8 and 12 are irrelevant to the disposition of the issues in this case. Accordingly, the objections to those two exhibits are sustained and both exhibits will be treated as rejected exhibits proffered for inclusion in the record. Upon further consideration, it is also clear that Petitioner's Exhibit 9 is irrelevant to the disposition of the issues in this case. Accordingly, even though Exhibit 9 has been received in evidence, no findings of fact have been based on that exhibit.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony presented at the hearing, I make the following findings of fact: During November of 1986, Chuck's Whiskey Creek Service embarked upon the process of enforcing a mechanic's lien on Petitioner's 1963 Ford Stationwagon, vehicle identification number 3T24F155323 (hereinafter referred to as "Petitioner's vehicle.") The owner of Chuck's Whiskey Creek Service arranged for the paperwork regarding the mechanic's lien to be handled by an agent, Title Clearing Service. Title Clearing Service is operated by John Boesch and Carol Boesch. On November 21, 1986, John Boesch mailed a document titled Notice of Claim of Lien And Proposed Sale of Vehicle to Petitioner at two different addresses. The documents were sent via certified mail. Both of the documents were returned to John Boesch because they were not delivered to the Petitioner. The documents mailed on November 21, 1986, contain all of the information itemized at Section 713.585(1)(a) through (i), Florida Statutes. On December 17, 1986, a notice of sale was published in the Fort Myers News-Press, a newspaper circulated in Lee County, Florida. The notice published in the newspaper read, in its entirety, as follows: LEGAL NOTICE OF SALE Chuck's Whiskey Creek Service, 5371 McGreagor Blvd., Fort Myers, Florida 33907 will hold a private sale on the following vehicle to satisfy lien pursuant to Chapter 713:585 of Florida Statue (sic) on January 5, 1987, at 8 a.m. 1963 Ford SW VIN #3T24F155323 Amount of Lien $2,027.95 (813) 549-0631 Dec. 17 No. 5247 Thereafter, on January 5, 1987, a private sale was conducted at which time John W. Klingerman purchased Petitioner's vehicle from Chuck's Whiskey Creek Service for $200.00. On January 13, 1987, John W. Klingerman applied to the Respondent for issuance of a certificate of title in his name, based on his purchase at the January 5, 1987, sale. On January 30, 1987, the Respondent issued a certificate of title to Petitioner's vehicle described above to John W. Klingerman of 1824 Coronado Road, Ft. Myers, Florida 323901-7008. Title Number 43916166 issued by the Respondent now shows John W. Klingerman as the owner of the 1963 Ford stationwagon bearing vehicle identification number 3T24F155323. The issuance of the certificate of title to John W. Klingerman was in reliance upon the application for certificate of title filed by John W. Klingerman and various supporting documents. The supporting documents included a copy of the certificate of compliance and the report of sale certified by the clerk of the court. Other supporting documents certified by the clerk of the court included copies of the Affidavit of Publication, the Notice Of Claim Of Lien And Proposed Sale of Vehicle, the vehicle repair order, and envelopes reflecting efforts to mail notices to the Petitioner. The Petitioner's vehicle was previously titled in the state of South Carolina.
Recommendation Based upon all of the foregoing, it is recommended that the Department of Highway Safety and Motor Vehicles issue a final order in this case cancelling certificate of title number 43916166 issued to John W. Klingerman and that the Department thereafter notify John W. Klingerman of the cancellation of the certificate as provided in Section 319.25(1), Florida Statutes. DONE and ENTERED this 22nd day of October, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2613 The following are my specific rulings on each of the proposed findings of fact submitted by the parties. The paragraph numbers below correspond to the paragraph numbers of the parties' proposed findings. Rulings on Petitioners Proposed Findings: Paragraphs 1 and 2: Accepted in substance. Paragraph 3: Accepted in substance with exception of vehicle identification number, which is incomplete. Paragraphs 4 and 5: Rejected as constituting argument or conclusions of law, rather than findings of fact. Paragraph 6: First sentence rejected as constituting argument or conclusions of law, rather than findings of fact. Second sentence is rejected as contrary to the greater weight of the evidence. Paragraph 7: First sentence rejected as constituting argument or conclusions of law, rather than findings of fact. Second sentence is accepted in substance, i.e., that publication of the notice was less than 20 days prior to scheduled sale and the newspaper publication contained insufficient information. Paragraph 8: First two sentences are rejected as constituting argument or conclusions of law, rather than findings of fact. Last sentence is rejected as irrelevant and subordinate details. Paragraph 9: First two sentences are rejected as constituting argument or conclusions of law, rather than findings of fact. Last two sentences are rejected as contrary to the greater weight of the evidence. Paragraph 10: Entire paragraph rejected as constituting irrelevant and subordinate details. Paragraph 11: Entire paragraph rejected as primarily constituting argument or conclusions of law rather than findings of fact. To the limited extent this paragraph contains factual matter, it is rejected as irrelevant and subordinate. Rulings on Respondent's Proposed Findings: Paragraph 1: Accepted. Paragraph 2: Accepted with exception of proposed purchase date. Greater weight of the evidence shows purchase date as January 5, 1987. Paragraph 3: Accepted in substance, but with most details omitted as irrelevant or subordinate. Paragraph 4: Rejected as constituting irrelevant and subordinate details. Paragraph 5: Accepted. Paragraphs 6 and 7: Rejected as constituting irrelevant and subordinate details. Paragraph 8: First sentence rejected as not fully consistent with the greater weight of the evidence. Second sentence rejected as argument or conclusions of law, rather than findings of fact. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Department of Highway and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Mr. Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504
The Issue The issue for determination at formal hearing was whether Rule 5J- 12.001(2), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact Theron C. Phinney is the sole owner and operator of Mobile Auto Repair Shop, located in Lake Park, Palm Beach County, Florida. He is engaged in the repairing of motor vehicles and has been in the auto repair business for over 35 years. Mr. Phinney's auto repair business is mobile. All of his equipment and tools for repairing vehicles are located in his truck. Mr. Phinney repairs vehicles wherever they are located, i.e., he goes to where the vehicles are located. No repairs are performed at Mr. Phinney's residence. Mr. Phinney has no employees. Mr. Phinney has been issued an occupational license by Palm Beach County at a cost of $25.00. The license identifies his residence as the location for his business. Even though Mr. Phinney does not perform any vehicle repairs at his residence, the County required him to provide his residential address as the location of his business. The County renews his license yearly with the residential address. 1/ Repairs by mobile motor vehicle repair shops are performed wherever the vehicle needing repair is located. Equipment and tools used to perform the repairs are located in the vehicle owned by the mobile motor vehicle repair shop. The Department of Agriculture and Consumer Services (Department) is charged with administering the Florida Motor Vehicle Repair Act, Sections 559.901-559.9221, Florida Statutes. The Act requires motor vehicle repair shops to register with the Department and pay a fee and provides certain exemptions. Section 559.904, Florida Statutes. Section 559.904(9), Florida Statutes, provides: (9) No annual registration application or fee is required for an individual with no employees and no established place of business. Section 559.903(8), Florida Statutes, defines "place of business" and provides: (8) "Place of business" means a physical place where the business of motor vehicle repair is conducted. The Department's Rule 5J-12.001(2), Florida Administrative Code, provides: (2) "Established place of business" means that physical location noted on the occupational license issued to the motor vehicle repair shop pursuant to Chapter 205, Florida Statutes. If the county or municipality has adopted no local occupational license requirement pursuant to Chapter 205, Florida Statutes, the term means that physical location where motor vehicle repairs are performed, or records, equipment, or tools used for the conduct of the business of motor vehicle repair are housed or stored. The term includes any vehicle constituting a mobile repair shop. The Rule was adopted on January 18, 1995. Rule 5J-12.001(2) implements Section 559.904(9). The Rule also implements Section 559.903(5) and (7), Florida Statutes, which define "minor repair service" and "motor vehicle repair shop," respectively. There is no dispute that mobile motor vehicle repair shops are included in the definition of motor vehicle repair shops. The Department developed the challenged Rule over a period of several months. Numerous public meetings were conducted, particularly with the motor vehicle repair industry, throughout the State of Florida. From the public meetings conducted by the Department, it was evident, among other things, that there was no clear understanding of the meaning of the term "established place of business" in Section 559.904(9). Consequently, the Department was convinced that clarification of the term was needed. The Motor Vehicle Advisory Council (MVAC) reviewed and advised the Department on the challenged Rule and gave the Rule its (MVAC) approval. The MVAC is a statutorily created advisory council, composed of members from the motor vehicle repair industry. The challenged Rule includes all mobile motor vehicle repair shops within the class of businesses required to be registered with the Department pursuant to Chapter 559, Florida Statutes. The Department contends that this inclusion is necessary because, since the purpose of Chapter 559 is to regulate the auto repair business, the mobile motor vehicle repair shops are conducting the business sought to be regulated in that the mobile repair shops are licensed by county and municipal authorities and are performing significant repairs for compensation. There are approximately 560 mobile motor vehicle repair shops registered with the Department. Standing is not at issue in this proceeding.
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
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
Findings Of Fact Patricia Pyle is the sole owner and proprietor of Automenders, located at 5655 Beaver Street in Jacksonville, Florida. A paint and body shop, Automenders was opened in 1991 by Petitioner. In addition to paint work, Automenders repairs car frames, does rust repair to car bodies, repairs dents in automobiles, and installs headliners and vinyl tops. George Pyle, Petitioner's husband, has 30 years of experience in the automobile repair industry. He owns 50 percent of the land on which the business is located. He receives no rent from the business for use of his interest in the property. Mr. Pyle also does 50 percent of the estimates for work to be done in the shop, and works there approximately 30 to 50 hours per week. He is not paid for any of his efforts by Automenders since he presently draws social security. He does, however, share in the profits of the business. Petitioner and her husband previously operated a paint and body shop business at the same location from 1970 until 1986 when the couple decided to sell the business and retire. In that business, Petitioner was in charge of hiring, firing, keeping the books, doing the payroll and other administrative aspects of the business. The sale of the business in 1986 included the property, the paint and body shop, and an adjacent car lot. The purchasers of the business were unsuccessful in their business endeavors and, in 1991, Petitioner regained control of the property after the purchasers defaulted on their payments. Petitioner provided the start up costs and reopened the present business. There is little difference between Petitioner's present duties and her duties with the business which she and her husband sold. Petitioner is still in charge of administrative aspects of the enterprise. Listed on Automenders' bank account signature card are the names of Petitioner, her husband, and their daughter. Only one signature is required to transact business on the account. Additionally, Petitioner's husband is listed on Automenders' checks, along with Petitioner. Petitioner does not do actual body repair and painting of vehicles herself. While she did occasionally perform some technical tasks in the previous business such as taping and paint mixing, she has no other technical experience and has never received technical training in automobile body repair or painting. Even though she does not know how to run a frame straightening machine or paint cars, Petitioner maintains that she hires qualified employees and relies upon them for the technical aspects of her business. Petitioner's employees, Robert Yonnetti and Jason Sikes, are experienced. Yonnetti has 20 years of experience in the automobile body repair industry and has received training in repair as well as use of frame machines. Sikes has over nine years experience in automobile painting and has received training in automobile painting. Petitioner graduated from high school and attended Montgomery College where she took courses in bookkeeping, accounting and management. Petitioner has failed to provide documentation of training or possession of an expertise in automobile body repair work and painting. Consequently, Petitioner has not demonstrated the technical knowledge and capability necessary to maintain control of the technical aspects of the enterprise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Automenders application for certification as an MBE. DONE and ENTERED in Tallahassee, Florida, this 22nd day of March, 1995. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings Petitioner submitted a four page letter containing 10 unnumbered paragraphs. The letter has been reviewed and to the extent possible addressed by the foregoing findings of fact. Respondent's Proposed Findings 1.-20. Accepted, but not verbatim. COPIES FURNISHED: Patricia Pyle 5655 West Beaver Street Jacksonville, FL 32254 Ana Cristina Martinez Assistant Attorney General The Capitol - Suite PL - 01 Tallahassee, FL 32399-1050 Crandall Jones Executive Administrator Knight Building 2727 Centerview Drive Tallahassee, FL 32399-0950
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
