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 Whether Respondents committed the violations alleged in the Amended Administrative Complaint and, if so, what penalties should be imposed.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a state agency. It is responsible for administering and enforcing the provisions of Chapter 493, Florida Statutes. Respondent Carlos Ooten is now, and has been since July 25, 1991, the holder of a Class "C" (Private Investigator) license (No. C-91-00210) issued by Petitioner. Since July 25, 1991, Mr. Ooten has also held a Class "E" (Recovery Agent) license (No. E-91-00036) issued by Petitioner. In the application that he submitted to Petitioner to obtain his Class "E" license, Mr. Ooten revealed that on October 30, 1980 (when he was 19 years old) he had been convicted in Ohio of "Traff PCP" and sentenced to "1-10 years confinement" 2/ and that, subsequently, on October 7, 1982, he had received his "final release."3/ Petitioner determined that Mr. Ooten met the qualifications for licensure notwithstanding this 1980 conviction (of which it had been made aware by Mr. Ooten). Respondent Tarco Recovery, Inc. (Tarco) is a Florida corporation. It was incorporated in August of 1991 by Alden S. Tarte, Esquire, who became its first president. On December 16, 1991, Mr. Tarte, in his capacity as Tarco's president, submitted to Petitioner an application requesting that Tarco be granted a Class "R" (Recovery Agency) license. On the application, Mr. Tarte indicated that he was the president of Tarco, that Mr. Ooten was Tarco's secretary, and that Stuart Martin was Tarco's general manager. At a special meeting of the Tarco Board of Directors held on December 30, 1991, Mr. Ooten was elected vice-president and Mr. Martin was elected secretary. Tarco sent to Petitioner a copy of the minutes of this special board meeting to supplement its application. Petitioner received this submission on January 9, 1992. Mr. Martin resigned as secretary and general manager of Tarco, effective January 29, 1992. By letter dated April 8, 1992 (and received by Petitioner April 10, 1992), Tarco advised Petitioner of Mr. Martin's resignation and the acceptance of the resignation by Tarco's Board of Directors. By letter dated April 21, 1992, Mr. Ooten resigned his positions as vice president and director of Tarco. Mr. Ooten's resignation was accepted at a special meeting of Tarco's Board of Directors. Tarco sent to Petitioner a copy of Mr. Ooten's letter of resignation and the minutes of the special board meeting at which Mr. Ooten's resignation had been accepted. These materials were received by Petitioner on April 28, 1992. By letter dated June 4, 1992, Petitioner notified Tarco that its application for a Class "R" license had been approved. The license was issued five days later. It has remained in effect since that date. On or about October 25, 1995, Mr. Ooten purchased Tarco from Mr. Tarte and succeeded Mr. Tarte as Tarco's president. Mr. Ooten sent the following letter to Petitioner, dated November 1, 1995, to advise Petitioner of this "change in corporate officers": RE: Change in Corporate Officers TO WHOM IT MAY CONCERN Please review the enclosed documents as they pertain to Tarco Recovery, Inc., R9100128. Effective October 26, 1995, Alden Tarte has resigned as President of Tarco Recovery, Inc. and Carlos Ooten was elected President. Carlos Ooten previously held the position of Vice President as reflected in the original Corporation Papers submitted to the State in 1991 for the issuance of the "R" License. If there is anything further required of myself or Tarco Recovery, Inc. please notify me at the above mailing address. Thanking you in advance for your cooperation in the matter. Petitioner, apparently, never received the letter Mr. Ooten had sent it. (The letter is not among the documents in "the complete licensure file of Tarco" maintained by Petitioner, which was admitted into evidence as Petitioner's Exhibit 1.) Shortly after Mr. Ooten's purchase of the business, Victoria Cogburn began working for Tarco as its director of operations. As the director of operations, she handled the "paper flow through the office." Ms. Cogburn had occasion to correspond with Petitioner concerning matters relating to Tarco's licensure. On July 18, 1996, she sent to Petitioner, by facsimile transmission, a copy of a Certification of Insurance completed by Tarco's insurance company, along with a cover letter. The cover letter was typed on stationery with Tarco letterhead, which reflected that Mr. Ooten was the "President/Owner" of Tarco. The following day, July 19, 1996, Petitioner issued Tarco a renewal license. When Mr. Ooten received a copy of the renewal license, he noticed that it erroneously reflected that Mr. Tarte was president of Tarco. Accordingly, he sent the following letter, dated September 5, 1996, to Petitioner requesting that the license be reissued to indicate that he, not Mr. Tarte, was Tarco's president: RE: R9100128 TO WHOM IT MAY CONCERN I am in receipt of Tarco Recovery, Inc.['s] "R" License which was renewed 7/19/96 (copy attached). I am curious as to why this license still reflects Alden Tarte as President due to the fact that on November 1, 1995 I notified the State of a change in corporate officer. I have enclosed a copy of the letter sent reflecting this change. Please reissue my "R" License to show Carlos Ooten as President. If you have any questions or problems, please do not hesitate to contact me. This letter, like the November 1, 1995, letter, Mr. Ooten had previously sent to Petitioner, apparently, was never received by Petitioner (The letter is not among the documents in "the complete licensure file of Tarco" maintained by Petitioner.) Before being hired by Tarco, Ms. Cogburn had worked for All Pro Recovery, Inc. (All Pro), an Orlando recovery agency. As a business possessing an Orange County occupational license, All Pro was eligible for and, at its request, received access to Tag Talk, a service provided by the Orange County Tax Collector (Tax Collector) that qualified businesses, like All Pro, after entering into a contract with the Tax Collector, were able to use free of charge to obtain information concerning vehicles registered with the Department of Highway Safety and Motor Vehicles (DHSMV). Such information was accessed by telephone, with the caller using an access code and password provided by the Tax Collector. As an employee of All Pro, Ms. Cogburn had been given All Pro's access code to Tag Talk and assigned a password that she could use, with her employer's consent, to access Tag Talk. Ms. Cogburn continued to use All Pro's access code and her All Pro password to access Tag Talk after she began working for Tarco. It was her understanding that she had authorization from All Pro to do so inasmuch as she continued to "work[] directly for All Pro on Mitsubishi work." Although the owner of All Pro, Arlie Jarrell, testified at the final hearing in the instant case that he did not authorize Ms. Cogburn to use, following her departure from All Pro, the All Pro access code and the password she had been assigned as an All Pro employee to access Tag Talk, there has been no showing that Mr. Ooten knew or should have known that Ms. Cogburn, acting in her capacity as a Tarco employee, was accessing Tag Talk without All Pro's authorization. Ms. Cogburn, while an employee at All Pro, had become acquainted with Roland Dube, the owner of Florida Vehicle Recovery Bureau (FVRB), a Tampa recovery agency. When one of Tarco's clients, Infiniti Financial Services (IFS), indicated that it had repossession work in Tampa that it wanted Tarco to perform, provided Tarco had a "branch office" in the Tampa area to do the work, 4/ Ms. Cogburn (who was now a Tarco employee) contacted Mr. Dube to find out whether he would be interested in operating his recovery agency as a Tarco "branch office" for purposes of performing this work. Mr. Ooten, on behalf of Tarco, and Mr. Dube, on behalf of FVRB. subsequently entered into a verbal "reciprocal" agreement whereby Mr. Dube agreed to operate FVRB as a Tarco "branch office" to perform, for a fee, Tampa repossession work (including storage of repossessed vehicles) for Tarco clients and Mr. Ooten agreed to operate Tarco as an FVRB "branch office" to perform, for a fee, South Florida repossession work (including storage of repossessed vehicles) for FVRB clients. Mr. Ooten had discussions with Mr. Dube "about having an 'RR' ['branch office'] license in place," but he (Mr. Ooten) did not pursue the matter further and such a license was never obtained. Mr. Ooten did, however, obtain insurance ($1,000,000.00 general liability, $500,000.00 garagekeepers, and $3,000.00 personal property) covering FVRB's Tampa storage facility (located at 10616 U.S. Highway 92 East in Tampa) where FVRB stored vehicles it repossessed. FVRB (purporting to act as Tarco's Tampa "branch office" in accordance with the agreement into which Mr. Ooten and Mr. Dube had entered, hereinafter referred to as the "Reciprocal Agreement") repossessed approximately ten vehicles (Repossessed Vehicles) at Tarco's request. All of these vehicles were repossessed pursuant to referrals received by Tarco from IFS, and, following their repossession, they were stored by FVRB at its Tampa storage facility. Tarco's agreement with IFS provided that IFS would pay Tarco, in addition to a repossession fee, a storage charge of $10.00 a day per vehicle for each day following the first ten days of storage that the vehicle remained in storage. The Reciprocal Agreement between Tarco and FVRB, on the other hand, did not address the subject of storage charges. All but three of the Repossessed Vehicles were picked up, at IFS's direction, from FVRB's Tampa storage facility. FVRB was paid by Tarco a repossession fee for having repossessed these vehicles. The three Repossessed Vehicles that remained at FVRB's Tampa storage facility were: a 1995 Infiniti, VIN #JNKAY21DOSM204138, repossessed on November 18, 1996 (Vehicle 1); another 1995 Infiniti, VIN #JNKAY21DISM204844, repossessed on December 9, 1996 (Vehicle 2); and a 1993 Infiniti, VIN #JNKG01C5PM220701, repossessed on January 29, 1997 (Vehicle 3). (These three vehicles will hereinafter be referred to collectively as the "Subject Vehicles.") The Subject Vehicles were all owned by IFS and had been leased to the individuals from whom they had been repossessed. Five months after the last of the Subject Vehicles had been repossessed, IFS still had not taken any action to remove these vehicles from FVRB's Tampa storage facility, nor had it paid Tarco for any of the repossession work done in connection with these vehicles. Accordingly, on June 29, 1997, for each of the three Subject Vehicles, Tarco sent IFS an invoice advising IFS the amount Tarco claimed that IFS owed Tarco (as of that date) for the repossession work IFS had requested Tarco to perform in connection with the vehicle described in the invoice, and it also served on IFS, and filed with the DHSMV, a completed Towing and Storage Notice of Claim of Lien and Proposed Sale of Vehicle form (Claim Notice) for each vehicle. Tarco took such action after Ms. Cogburn had telephoned the DHSMV and, in response to her question of what "remedy we [Tarco] could have on vehicles on our [Tarco's] storage facility 5/ that we [Tarco] considered abandoned," was told that the "only process to obtain titles to vehicles that were, in essence, abandoned was to file under the [Chapter] 713 statute for the lien of a vehicle for storage and/or towing." The DHSMV, at Ms. Cogburn's request, sent forms for Tarco to use to obtain title pursuant to Chapter 713, Florida Statutes, and Tarco used these forms. The invoice for Vehicle 1 stated that IFS owed Tarco $325.00 for an "Administration/Lien Fee" and $4,4850.00 for "Storage Charges" for a total of $5,175.00. According to the invoice, the "Storage Charges" were based on a rate of $10.00 a day through December 31, 1996, and $25.00 a day after December 31, 1996. The invoice for Vehicle 2 stated that IFS owed Tarco $325.00 for an "Administration/Lien Fee" and $4,630.00 for "Storage Charges" for a total of $4,955.00. According to the invoice, the "Storage Charges" were based on a rate of $10.00 a day through December 31, 1996, and $25.00 a day after December 31, 1996. The invoice for Vehicle 3 stated that IFS owed Tarco $325.00 for an "Administration/Lien Fee" and $3,550.00 for "Storage Charges" for a total of $3,875.00. According to the invoice, the "Storage Charges" were based on a rate of $25.00 a day. It was Mr. Ooten's decision to charge IFS (for post-December 31, 1996, storage) $25.00 a day, rather than the agreed-upon $10.00 a day. He "figured that if [he] raised the price [IFS] would react faster." The Claim Notice form that Tarco used provided as follows: TOWING AND STORAGE NOTICE OF CLAIM OF LIEN AND PROPOSED SALE OF VEHICLE DATE TO: REGISTERED OWNER LIENHOLDER NAME ADDRESS CITY STATE, ZIP NAME ADDRESS CITY STATE, ZIP NAMES AND ADDRESSES OF ANY OTHER PERSONS, INCLUDING ANY OTHER LIENHOLDERS, CLAIMING INTEREST IN VEHICLE **************************************** LIEN[O]R (TOWING DESCRIPTION OF & STORAGE VEHICLE COMPANY) NAME YEAR MAKE ADDRESS CITY STATE, ZIP VIN# DATE STORED STORED AT TELEPHONE Each of you is hereby notified that the above vehicle was towed at the request of , and the above named lienor is in possession of and claims a lien on the above described vehicle for towing and storage charges accrued in the amount of . The charges will continue to accrue at the rate of per day. The lien claimed by the above named lienor is subject to enforcement pursuant to F.S. 713.78 and unless said vehicle is redeemed from said lienor by payment as allowed by the law, the above described vehicle may be sold to satisfy the lien. If the vehicle is not redeemed and that vehicle which remain[s] unclaimed, or for which the charges for recovery, towing, or storage services remain[s] unpaid, may be sold after 35 days free of all prior liens. The above designated Lienor proposes to sell the vehicle as follows: PUBLIC AUCTION TO BE HELD AT COMMENCING AT AM/PM ON THE DAY OF , 19 . STATEMENT OF OWNERS RIGHTS Notice that the owner or lienholder within 10 days after the time they have knowledge of the location of the vehicle may file a complaint in the county court in which the vehicle is stored or in which the owner resides to determine if their property was wrongfully taken or withheld from them. Notice that upon filing a complaint, an owner or lienholder may have their vehicle released upon posting with the court a cash or surety bond or other adequate security equal to the amount of the charges for towing and storage to ensure the payment of such charges in the event they do not prevail. Notice that any proceeds from the sale of the vehicle remaining after payment of the amount claimed to be due and owing to the lienor will be deposited pursuant to subsection (5) of F.S. 713.78. NOTE: The 35 day time frame that the vehicle must be held should not include the day of towing or storage or the date of sale. When a separate notice of sale is sent 15 days prior to the sale date, the date the notice was mailed or the date of sale should not be included in the 15 days. The newspaper ad must be placed 10 days prior [to] the scheduled date of sale, but the 10 days should not include the date the notice was placed in the newspaper or the date of sale. Each of the Claim Notice forms was completed by Ms. Cogburn and then signed by Mr. Ooten. On each of the completed forms, typed in on the line next to "NAME" under "REGISTERED OWNER" was "REPOSSESSION"; typed in the line next to "NAME" under "LIENHOLDER" was "Infiniti Financial Services"; typed in on the line next to "NAME" under "LIEN[O]R (TOWING & STORAGE COMPANY)" was "Tarco Recovery, Inc."; typed in on the line next to "STORED AT" under "DESCRIPTION OF VEHICLE" was "2780 NW 38th Street Miami, FL 33142," which was also identified as the location where (at 4:00 p.m. on October 23, 1997) the "PUBLIC AUCTION [WOULD] BE HELD." At the time he signed these completed Claim Notice forms, Mr. Ooten knew that the Subject Vehicles were stored, not at the Miami address given in the notices, but at FVRB's Tampa storage facility and were in the actual possession of FVRB. According to the completed Claim Notice forms, the "towing and storage charges accrued" to date with respect to Vehicle 1, Vehicle 2, and Vehicle 3 were $5,175.00, $4,955.00, and $3,875.00, respectively, and "charges [would] continue to accrue at the rate of $25.00 per day." Not having received any response from IFS to either the invoices or the Claim Notices, Tarco had published in the October 9, 1997, edition of the River Cities Gazette, a local Miami-Dade County newspaper, a notice of the "public sale" of the Subject Vehicles. The notice provided as follows: Notice is hereby given that on Thursday, October 23, 1997 at 4 pm there will be a PUBLIC SALE of the following vehicles. Sealed bids will be accepted from 4 pm until 5 pm. The sale will take place at 2780 NW 38th Street, Miami, FL. These vehicles are being sold for storage liens. At the time the notice was published, the Subject Vehicles were still at FVRB's Tampa storage facility; however, it was Tarco's intention to have the vehicles at the auction site in Miami at the time of the auction. Tarco made arrangements with a transport company to have the Subject Vehicles picked up at FVRB's Tampa storage facility and delivered to the auction site; Mr. Dube, however, refused to release the vehicles and they remained at FVRB's Tampa storage facility. The public auction of the Subject Vehicles was held on October 23, 1997, as scheduled. At the time of the auction, the Subject Vehicles were, as they had been since the date of their repossession, at FVRB's Tampa storage facility and not at the auction site. IFS had not taken any action to claim the Subject Vehicles, nor had it paid any of the fees that, according to Tarco, it owed Tarco for services provided in connection with these vehicles. No member of the general public appeared at the auction to submit a bid to purchase any of the Subject Vehicles. Following the auction, for each of the Subject Vehicles, Mr. Ooten signed an Affidavit of Sale by Storer, Warehouseman, Mechanic or Repair Garage, in which he stated that the Subject Vehicle in question "was lawfully sold to Tarco Recovery, Inc. (purchaser) at 2789 NW 38th Street, Miami, FL on October 23, 1997 in enforcement of a legal lien for just and reasonable charges . . . for storage justly owing and unpaid to October 23, 1997," and in which he further stated the following: The certificate of title last issued on said vehicle is surrendered herewith, or (b) the certificate of title cannot be forwarded, but a true copy of the court order or notice under which said sale was made is hereto attached, and notice of sale was duly given the owner of said motor vehicle by newspaper ad (copy of which is attached) published October 9, 1997, in the River Cit[ies] Gazette. Affiant has no knowledge or information of any lien or claim against said vehicle except a lien in favor of Infiniti Financial Services, 990 W. 190th Street, Torrance CA 90502. All applicable laws and regulations relating to sale of said vehicle were duly complied with and observed. Affiant believes said purchaser now truly owns said vehicle, and affiant or said storer, warehouseman or repairer will save harmless anyone damaged by any false or wrongful statement herein made. According to the affidavits, the "just and reasonable charges . . . for storage justly owing and unpaid to October 23, 1997," were $8,050.00 for Vehicle 1, $7,830.00 for Vehicle 2, and $6,750.00 for Vehicle 3. The affidavits were filed with the Clerk of the Circuit and County Courts of Miami-Dade County and with the DHSMV. On October 29, 1997, for each of the Subject Vehicles, Mr. Ooten executed, under oath, a five-paragraph Certificate of Compliance. Except for paragraph 2, which described the Subject Vehicle in question, the certificates were identical and provided (in paragraphs 1, 3, 4, and 5 thereof) as follows: 1. I (We) hereby make oath that the undersigned lienor claims a lien on the following described vehicle per Florida Statute 713.585 for unpaid storage and/or repair charges. The attached Notice of Claim of Lien and Proposed Sale of Vehicle was sent by registered or certified mail, at least 45 days prior to the proposed or scheduled date of sale of vehicle, to the registered owner of the vehicle, and to all other persons claiming an interest in or lien thereon, as disclosed by the Department of Highway Safety and Motor Vehicles or of a corresponding agency evidencing such mailing are attached. The Notice of Claim of Lien and Proposed Sale of Vehicle contains all of the information as required in Florida Statute 713.585(1)(a) through (i). For those persons who have not acknowledged receipt of the aforementioned notice, a true copy of said notice was published once in the River Cit[ies] Gazette which is a newspaper circulated in DADE County Florida, at least 20 days prior to the proposed or scheduled date of sale of the vehicle. 6/ A copy of this publication is attached. The certificates were filed with the Clerk of the Circuit and County Courts of Miami-Dade County and with the DHSMV. On November 6, 1997, Mr. Ooten, on behalf of Tarco, sent FVRB the following letter: In furtherance of our numerous prior verbal requests, demand is hereby made for immediate possession of the following three (3) vehicles: 1995 Infiniti J30 VIN# JNKAY21DOSM204138 1993 Infiniti Q45 VIN# JNKG01C5PM220701 1995 Infiniti J30 VIN# JNKAY21DISM204844 Your failure to return forthwith said vehicles to the possession of Tarco Recovery, Inc. will result in our claim against Florida Vehicle Recovery Bureau for possession and monetary damages. On November 19, 1997, Mr. Dube, on behalf of FVRB, sent the following letter to Tarco: RE: Repossession and storage of vehicles Attention: Carlos Ooten and Victoria E. Cogburn Dear Mr. Ooten and Ms Cogburn: This letter is to advise you that the following charges have been incurred on the subject vehicles: 1995 Infiniti J30 Vin# JNKAY21DOSM204138 Repossession Fee $200.00. Storage since 11-18-96 $11,010.00 1995 Infiniti J30 Vin# JNKAY21DISM204844 Repossession Fee $325.000. Storage since 12-11-96 $10,320.00 1993 Infiniti Q45 Vin# JNKG01C5PM220701 Repossession Fee $200.00. Storage since 01-29-97 $8,850.00 Total owed is $30,905.00 as of November 19th. Storage will keep accumulating at $30.00 a day per vehicle. We can accept cash or certified funds plus a release letter from Inifinit[i] Financial stating current authorization to pick up units on the[ir] behalf. Please be advised that any attempt to illegally obtain storage titles by the use of affidavits containing false or misleading information will be turned over to the State Attorney's Office. Our attorney, Tom Dandar, can be reached at the same number you called previously if you wish to discuss our possessory lien under chapter 713 of Florida law. At no time prior to receiving this letter had Tarco been billed for storage by FVRB. Tarco's attorney responded, on behalf of Tarco, to Mr. Dube's letter by sending Mr. Dube the following letter: Our law firm represents Tarco Recovery Inc. of Dade County, Florida. You are hereby notified that our client objects to the charges set forth in your letter of November 19, 1997, regarding the three (3) subject vehicles. Moreover, your continued failure to forthwith return possession of the vehicles to Tarco Recovery represents a conversion of property. PLEASE GOVERN YOURSELF ACCORDINGLY. Tarco subsequently filed the following Complaint in Hillsborough County Circuit Court (Case No. 97-08538): COMES NOW, the Plaintiff, TARCO RECOVERY, INC., through counsel and sues Defendant, ROLAND ROBERT DUBE d/b/a FLORIDA VEHICLE RECOVERY BUREAU, and states: This is an action for damages exceeding $15,000.00, exclusive of interest and costs. Plaintiff is a Florida corporation with its principal place of business located in Dade County, Florida. Defendant is sui juris and a resident of Hillsborough County, Florida, doing business as Florida Vehicle Recovery Bureau in Hillsborough County, Florida. This action involves property located in Hillsborough County, Florida. Count I (Replevin) Plaintiff realleges paragraphs one (1) through four (4) above, as though fully stated herein. This is an action to recover possession of personal property located in Hillsborough County, Florida. The description of the personal property is identified as follows: 1995 Infiniti J30 VIN# JNKAY21DOSM204138; 1993 Infiniti Q45 VIN# JNKG01C5PM220701; and 1995 Infiniti J30 VIN# JNKAY21DISM204844. Said vehicles are hereinafter collectively referred to as the "Property." Plaintiff is unable to determine the present value of the Property because the Defendant has denied Plaintiff access thereto. However, according to the N.A.D.A. Official Used Car Guide, the retail value of the Property is $65,250.00. On October 23, 1997, Plaintiff acquired ownership of the subject vehicles pursuant to a lawful sale conducted under Section 713.78 of the Florida Statutes. Documentation of Plaintiff's Notice of Claim of Lien, Affidavit of Sale, and Application for Certificate of Title with respect to all three (3) vehicles are attached hereto as Plaintiff's Composite Exhibit "A." To Plaintiff's best knowledge, information, and belief, the Property is located at 10616 U.S. Highway 92 East, Tampa, Hillsborough County, Florida. The Property is wrongfully detained by Defendant. Defendant has refused to voluntarily surrender the Property despite Plaintiff's demand therefor. The Property has not been taken for any tax, assessment or fine pursuant to law. The Property has not been taken under an execution or attachment against Plaintiff's property. WHEREFORE, Plaintiff demands judgment against Defendant, ROLAND ROBERT DUBE d/b/a FLORIDA VEHICLE RECOVERY BUREAU, for possession of the Property, plus court costs, interest and attorney's fees pursuant to Florida law. COUNT II (Conversion) Plaintiff realleges paragraphs one (1) through four (4) above, as though fully stated herein. This is an action for conversion of personal property located in Hillsborough County, Florida. Plaintiff owns the personal property identified as follows: 1995 Infiniti J30 VIN# JNKAY21DOSM204138; 1993 Infiniti Q45 VIN# JNKG01C5PM220701; and 1995 Infiniti J30 VIN# JNKAY21DISM204844. Said vehicles are hereinafter collectively referred to as the "Property." On or about October 23, 1997, Defendant converted the Property to his own use. The value of the Property cannot be determined at this time because Defendant has denied Plaintiff any access to inspect the Property and determine its condition. However, according to the N.A.D.A. Official Used Car Guide, the retail value of the Property is $65,250.00. Defendant has refused to return the Property, despite Plaintiff's demands therefor. WHEREFORE, Plaintiff demands judgment for damages against Defendant, ROLAND ROBERT DUBE d/b/a FLORIDA VEHICLE RECOVERY BUREAU, plus all applicable prejudgment and court costs of this action. On December 3, 1997, the DHSMV, based on the documentation it had received from Tarco, issued title certificates for the Subject Vehicles in Tarco's name. On January 6, 1998, the DHSMV advised Tarco in writing that it had, that date, cancelled these title certificates, explaining that a review of its files had "reflect[ed] that [the] title[s] [were] issued in error as [it] ha[d] been advised by [its] legal staff that the vehicles [were] involved in legal litigation at this time." In or about April of 1998, Mr. Ooten, at the request of a client who was concerned about Tarco's licensing status, telephoned Petitioner and asked to be sent a letter "of compliance." He subsequently received, in response, the following letter, dated April 27, 1998, from Marilyn Thompson, Petitioner's Assistant Director: Mr. Carlos Ooten Tarco Recovery, Inc. Post Office Box 66158 Miami Springs 33266 In response to your telephone request of today, enclosed is a Custodian of Records Statement regarding your Recovery Agency license #R91-00128 licensing status. Please call Marsha Stroud at . . . if we may be of further assistance. The "Custodian of Records Statement" accompanying the letter read as follows: In my capacity as Assistant Director, Florida Department of State, Division of Licensing, I am the official Records Custodian for the Division. I hereby certify that Recovery Agency license #R91-00128 was issued on June 8, 1992, in the name of Tarco Recovery, Inc., located at 2789 NW 38th Street, Miami Springs, Florida. This license has been renewed every two years and is valid, pursuant to Chapter 493, Florida Statutes, until June 8, 1998. A further search indicates that this license is currently in good standing and has never been suspended. On or about May 1, 1998, shortly after he had received Ms. Thompson's April 27, 1998, letter and her "Custodian of Records Statement," Mr. Ooten received a telephone call from Perry Wood, an investigator with Petitioner. Mr. Wood, on April 28, 1998, had received an anonymous telephone call. The caller had complained that Mr. Ooten had replaced Mr. Tarte, who had passed away, as Tarco's chief operating officer "without [Petitioner] being notified of Mr. Tarte's death." Mr. Wood, as part of his investigation of the complaint, telephoned Mr. Ooten and asked if Mr. Ooten "was aware that Mr. Tarte had been dead for several years." Mr. Ooten answered untruthfully. He told Mr. Wood that he had "just learned of it [Mr. Tarte's death]" two and a half weeks earlier. On May 22, 1998, the presiding judge in Hillsborough County Circuit Court Case No. 97-08538 issued his Final Judgment in the case, which provided as follows: THIS CAUSE coming before me for a non- jury trial on the 12th day of May, 1998, and the court having heard all of the evidence and arguments of counsel, and otherwise being duly advised in the premises, the court finds that Plaintiff is claiming ownership by way of its claim of lien pursuant to [Section] 713.78, Florida Statutes, and in order for the Plaintiff to prevail, it must show that it had possession of the vehicles and that it actually did the work. The evidence shows that at all times the Defendant possesses the vehicles, the Plaintiff did not have possession of the vehicles, Plaintiff's allegation in the affidavits submitted to obtain title were untrue, the foreclosure sale took place in a county other than where the vehicles were located, and thus Plaintiff is not the owner of the vehicles and its claim of lien fails. It is ADJUDGED that the Plaintiff is not the owner of the three vehicles: 1995 Infiniti J30, VIN- JNKAY21DOSM204138, 1995 Infiniti J30 VIN- JNKAY21DISM204844, 1993 Infiniti Q45 VIN- JNKG01C5PM220701. It is further ADJUDGED that judgment is hereby entered in favor of the Defendant ROLAND ROBERT DUBE d/b/a FLORIDA VEHICLE RECOVERY BUREAU, and against Plaintiff, TARCO RECOVERY, INC., and the Defendant shall go hence forthwith without day. It is further ADJUDGED that this court reserves jurisdiction to award costs, damages and attorney fees to the Defendant. No award of "costs, damages and attorney fees" was subsequently made to the Defendant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order dismissing Counts I, II, and IV of the Amended Administrative Complaint; finding Respondents guilty of the violations alleged in Counts III and V through XVII of the Amended Administrative Complaint; and, for having committed these violations, suspending their licenses (Mr. Ooten's Class "C" and Class "E" licenses and Tarco's Class "R" license) for a period of one year and requiring them to jointly pay a fine of $4,200.00. DONE AND ENTERED this 28th day of January, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of January, 2000.
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 Whether Respondent is operating a motor vehicle repair shop without being registered with Petitioner, in violation of Section 559.904, Florida Statutes, and is subject to an administrative fine.
Findings Of Fact The Petitioner is the state agency charged with the enforcement and regulation of Sections 559.901-559.9221, Florida Statutes, cited as the "Florida Motor Vehicle Repair Act". On October 13, 1995, an Investigation Specialist with the Bureau of Motor Vehicles, went to 1604 C Waverly Place, Melbourne, Florida. At that location is a building that has signs on it which read "All Auto Repair, Acura and Honda Factory Trained". All Auto Repair occupied approximately two-thirds of the building. There were two bays and two vehicle lifts. In the building were located snap-on tools; and while inside, the Investigation Specialist observed two persons who appeared to be mechanics. One of the two was working on a vehicle in one of the two bays. Besides the vehicle being worked on, other vehicles were on the property. The person who was not working on a vehicle introduced himself as Rudy Garcia, Manager of the business. While conversing with Mr. Garcia, a telephone call was received at the business. A female voice on the telephone identified herself as Elizabeth Whitehead, owner of All Auto Repair. She was informed about the registration and why the inspector was there. Mr. Garcia would not sign for the registration package which the inspector had with him. The registration package was left at the place of business. The registration package had an application, a copy of the Florida Motor Vehicle Act, and an envelope to send the application in to the Department. On or about October 19, 1995, Respondent sent a letter to the inspector addressed to Petitioner in Tallahassee concerning his visit to her ". . . private place of labor". On October 25, 1995, the Petitioner sent to Respondent a Notice of Intent to Impose Administrative Fine for failure to register or file an affidavit of exemption. Respondent received the Notice. The response from Respondent was a letter dated November 17, 1995, which the Petitioner construed as a demand for a hearing. After the Notice of Intent was sent, an analyst with the Bureau of Motor Vehicle Repair called the telephone number for All Auto Repair to confirm that it was open and doing motor vehicle repair. It was open and doing motor vehicle repair. Subsequent to his visit on October 13, 1995, the inspector drove by All Auto Repair during November and December and observed that the repair shop was open for business. On January 30, 1995, 12 to 15 vehicles were observed behind a chain- link fence, which surrounded the grounds of All Auto Repair. In the northernmost bay, a Ford LTD was being worked on by a technician. Among the cars on the property were some Hondas, a Toyota, a Suzuki, and a Lincoln Town Car. Prior to the hearing on February 27, 1996, an inspector went by All Auto Repair and observed a technician working on a red Honda in one of the bays. He observed two Hondas and an Acura on the grounds. At some point in time, Rudy Garcia was seen on the grounds. Respondent has not registered with the Petitioner as a motor vehicle repair shop and has not submitted an affidavit of exemption to the Petitioner. Respondent is operating a motor vehicle repair shop.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of unlawfully engaging in repair work for compensation without first being registered with the Petitioner, in violation of Section 559.920(1), Florida Statutes; and pursuant to Section 559.921(4), Florida Statutes, the Department of Agriculture and Consumer Services enter a Final Order imposing an administrative fine against Respondent in the amount of $1,000.00, and it is further RECOMMENDED that Petitioner seek a temporary or permanent injunction in circuit court compelling Respondent to cease and desist in her violation of the law. DONE and ENTERED this 20th day of March, 1996, in Tallahassee, 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 20th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0015 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact Accepted in substance: paragraphs 1-17. Respondent's Proposed Findings of Fact Respondent did not submit proposed findings of fact. COPIES FURNISHED: Lawrence J. Davis, Esquire Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Ms. Elizabeth Whitehead 1604 C Waverly Place Melbourne, Florida 32901 Honorable Bob Crawford Commissioner of Agriculture 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
The Issue The issues concern the question of whether the Petitioner is entitled to impose a $1,660.00 assessment against Respondent for operating a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On October 21, 1991, Respondent's commercial vehicle was inspected at the Petitioner's Yulee weight station located on Interstate 95 in Nassau County, Florida. It was discovered that the motor vehicle did not have a Florida registration. Furthermore, the South Carolina registration for the vehicle was not apportioned to allow operation in Florida. As a consequence a penalty was assessed for operating the commercial vehicle in Florida without benefit of an appropriate registration. The actual amount of penalty was $1,660.00 which is reflective of the gross weight of 68,200 pounds at a price of .05 per pound of the amount in excess of 35,000 pounds. Respondent paid the $1,660.00 fine plus the $30 single trip registration fee. This payment was rendered on the date that the commercial vehicle was stopped.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered finding that the $1,660.00 penalty was an appropriate amount to be assessed against the Respondent on October 21, 1991, as envisioned by Section 316.545(2)(b), Florida Statutes, and that the request for refund of that amount be rejected. DONE and ENTERED this 23rd day of June, 1992, in Tallahassee, Florida. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 GayCille Swisher Isley Iron & Metal Company 1691 Lost Mountain Road Powder Springs, GA 30073 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 CHARLES C. ADAMS, 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 23rd day of June, 1992.
