The Issue The central issue in this case is the Department's cancellation of a duplicate vehicle title which showed a first lien status asserted by Petitioner for a 1985 Porsche automobile, title no. 41645698.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On or about June 28, 1989, the Petitioner sold a 1985 Porsche automobile, VIN WP0AA0945FN452920, Florida title no. 41645698, to an individual identified in this record as William H. Moulton. Also on that date, Wayne Scott Moore, as president of Performance, filed an application for certificate of title for the subject vehicle with the Brevard County tax collector. That application provided that Kennedy Space Center Federal Credit Union (KSCFCU) was the first (and only described) lienholder on the vehicle to be titled in Mr. Moulton's name. On December 20, 1989, a second notice of a lien on the subject vehicle was filed by the Petitioner. That notice was also filed with the tax collector's office in Brevard County, Florida. This notice described Petitioner's lien to be a "2nd Lien." Based upon a coding error entered at the tax collector's office, the lien filed by Performance was mistakenly coded and identified as a first lien. Prior to that date a satisfaction of the KSCFCU lien had not been filed. As a result of the coding error, when a duplicate title was processed it described Performance as a first lienholder instead of a second lienholder. On or about August 24, 1990, the Department discovered the coding error and cancelled the duplicate title which had omitted the KSCFCU first lien. A corrected title was issued which was sent to KSCFCU. When Mr. Moulton failed to remit monies owed to Petitioner, it sought to foreclose its lien interest on the subject vehicle and, on August 1, 1990, obtained a final judgment of foreclosure against William Hodgman Moulton. KSCFCU was not named a party to that suit and the court presumed (final judgment paragraph 13) that Petitioner was the first lienholder on the subject vehicle. Petitioner was aware of the first lien status claimed by KSCFCU for the subject car on or about June 28, 1989. When Performance filed the documentation to perfect its security interest, the documentation stated it was to be a second lien. Petitioner presented no evidence that the first lien of KSCFCU has been satisfied either in fact or as a matter of law. Petitioner's first lien status is claimed only by virtue of the coding error in the tax collector's office. The Department first discovered the error regarding the duplicate title (which had been issued in January, 1990) just prior to its notice to Petitioner dated August 24, 1990. That letter advised Performance of the error and directed it to send the incorrect title to the Department.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Highway Safety and Motor Vehicles enter a final order confirming the cancellation of the incorrect duplicate title and issuance of the corrected certificate of title for the subject motor vehicle. DONE and ENTERED this 24th day of May, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 24th day of May, 1991. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraph 1 is accepted. Paragraph 2 is rejected as contrary to the weight of the evidence. Why Petitioner refers to a "tax lien" is unknown. Petitioner filed a notice of lien for a motor vehicle, that notice described the lien as a "2nd lien" for a 1985 Porsche automobile which is the subject vehicle in these proceedings. Paragraph 3 is rejected as contrary to the weight of the evidence. The tax collector processed the notice of lien as the Department's agent. In the coding process an error was committed which was not readily picked up which resulted with the Department issuing a duplicate title wherein it erroneously described Petitioner's lien as the first lien. The lien filed by KSCFCU has not been "replaced" or satisfied based upon this record. Paragraph 4 is rejected as argument or contrary to the weight of the credible evidence. With regard to paragraph 5 it is accepted that the letter of cancellation for the incorrect duplicate title was issued approximately 8 months after the incorrect duplicate title had been issued. Otherwise, the paragraph is rejected as argument, a conclusion of law not supported by the record, or, if fact, unsupported by the record in this case. Paragraph 6 is rejected as self-serving and uncorrobated hearsay. Mr. Moore's contention that the first lien to KSCFCU had been paid was not supported by any credible evidence. Mr. Moore's testimony to the contrary was not deemed credible. If the first lien shown on the Department's records has been paid, Performance should have presented evidence to that fact. Certainly bank records for the loan transaction could be subpoenaed. In point of fact, Mr. Moore knew of the first lien because he had filed the original paperwork to give notice of that interest. Paragraph 7 is rejected as not supported by the weight of credible evidence. Paragraph 8 is rejected as irrelevant or immaterial to the resolution of this case. The Department, upon discovery of the error, took reasonable steps and timely corrected the problem. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 5 are accepted. With the deletion of the phrase "replacing the first lien of Kennedy Space Center Federal Credit Union" paragraph 6 is accepted. That phrase is rejected as contrary to law or unsupported by the record in this case. Paragraphs 7 through 10 are accepted. COPIES FURNISHED: Michael J. Alderman Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A432 Tallahassee, Florida 32399-0504 Steven J. Jacovitz 43 S. Atlantic Avenue Cocoa Beach, Florida 32931 Kennedy Space Center FCU 415 Fortenberry Road Merritt Island, Florida 32952 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue The issues are those as promoted by an administrative complaint brought against the respondent charging a violation of Subsection 493.317(2), Florida Statutes, related to solicitation from the legal owner for the recovery of specific personal property after such property has been seen or located on public or private property.
Findings Of Fact Respondent, Bobby Jo Sanders, is and was at all times relevant to this action the holder of a class "E" re- possessor license number GE 12345099. Sharon Carlton of Starke, Florida purchased a 1979 Ford pickup truck from Southside Motors of Jacksonville, Florida. The truck was financed through Ford Motor Credit Corporation lienholder. The purchaser, Carlton, became delinquent in payments to Ford Motor Credit Corporation and the credit company sought the assistance of Jack Barry, a licensed repossessor, in trying to repossess the truck to protect its lien interest. Barry was unsuccessful in this effort. Barry was a repossessor under contract with Ford Motor Credit Corporation, who normally receive a fee of $125 to $150 for his services. Ramona Frasure, befriended the husband of the truck owner, at a time when Mr. Carlton was ill. Carlton explained to Frasure that his wife had written checks for insufficient funds for truck payments. He further stated that there was a $300 reward available if the truck was reclaimed by the Ford Motor Credit Corporation and indicated that he would wish Frasure to receive the reward money in view of her concern for him at the time of his illness. Frasure contacted Ford Motor Credit Corporation and indicated that the truck was in Lake City, Florida; however, she did not indicate the exact whereabouts. She also told the respondent that there was a truck which needs to be "kicked up" for which there is a $300 reward for return. She did not tell the respondent the exact location of the truck. Sanders told Frasure that he would contact Ford Motor Credit Corporation to determine the circumstance. Sanders then spoke with an employee at the Ford Motor Credit Corporation in Jacksonville, Florida, a Mr. Hinnant, and inquired on the subject of the $300 reward. Hinnant indicated that no reward had been offered. Sanders indicated that he had heard of this reward "on the street". He further stated that he was representing a client who possibly knew of the whereabouts of that truck. It is Ford Motor Credit Corporation's policy to deal with its contract repossessor, in this instance, Jack Barry, due to requirements of bonding and insurance. Sanders was told that he could not represent Ford Motor Credit Corporation because he did not have the required bond and insurance. Nonetheless, it was determined that the company would be willing to allow the respondent to work through another licensed repossessor who had a contract with Ford Motor Credit Corporation. This individual, one Dan Fordham, was located in Ocala, Florida. This decision was reached in view of the lack of success which Barry had in trying to recover the vehicle. Consequently, Ford chose to use Fordham in cooperation with Sanders. The arrangement was that Fordham would be paid $300 if the truck was recovered, and Fordham would share that $300 with the respondent. The repossession was to protect Ford's interest due to the default by Mrs. Carlton on installment loan payments owed to Ford. Subsequent to the initial conversation between the respondent and Frasure, some days or weeks following that discussion, and after the arrangement for reward had been made, Frasure told the respondent the location of the truck and the respondent repossessed the truck in Lake City, Florida. Fordham was then paid $300. He kept $75. Sanders then took $125 for his services and paid Frasure $100.
Findings Of Fact Respondent, Columbia Motor Sales, is a motor vehicle dealer licensed under Section 320.27, Florida Statutes. Respondent is owned solely by Jose B. Menna. In order to obtain the license, Menna completed an application for licensure on behalf of Respondent and filed it with DMV on July 5, 1991. The license was issued the same day. On the application, which was signed by Menna under oath, Menna answered "NO" to the following questions: Has the applicant or any partner or corporate officer or director: Been arrested on a felony or equivalent charge anywhere? Been convicted of a felony or equivalent charge anywhere? As required by Section 320.37(3), Florida Statutes, DMV obtained fingerprints from Menna and submitted them to the Florida Department of Law Enforcement and the Federal Bureau of Investigation (FBI) for confirmation of Menna's criminal record. The FBI's criminal history report shows that Menna was arrested for the felonies of receiving stolen property and assault with a deadly weapon and was convicted of the felony assault charge. If an applicant shows an arrest or conviction on his dealer license application, DMV's policy does not require an automatic denial. If only an arrest is shown, DMV conducts a further investigation to determine the applicant's fitness for licensure. If a conviction is shown, DMV would also investigate the seriousness and nature of the offense, whether the applicant's civil rights had been restored, and the surrounding circumstances before DMV would make a determination on the application. When an applicant does not reveal prior arrests or convictions on his application and DMV discovers their existence, DMV notifies the licensee and gives him an opportunity to submit documentation to clear the matter up informally. DMV did send Menna a letter advising him that there was a problem with his criminal record. The letter required Menna to provide information and documents regarding these criminal events within 20 days. It further stated that "Failure to respond to this letter will result in an administrative proceeding to revoke you license." Menna acknowledges that he received the letter, but he went to Guatemala for five weeks to sell cars and did not respond to the letter. After he returned, he says that he tried to call DMV, but at no time did he ever provide documents regarding these arrests and conviction. In fact, even at the hearing, he had no such documents with him. DMV's policy and position is that an applicant's failure to disclose and truthfully answer the questions on the application raises serious questions as to the applicant's honesty and integrity in dealing with the public. Menna testified that if he'd known that there were records showing the arrests and conviction, he would have answered the questions on the application "YES." He admits knowing that he had been arrested and convicted as the records show, but believed the records no longer existed. It is found that Menna was not honest when he denied having been arrested or convicted, because he knew of the existence of the arrests and conviction at the time he denied them. The question was simple and straightforward. Menna believed that his denial would not be a lie as long as no records existed to show the arrest and conviction. Menna was wrong in this belief.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, enter a Final Order and therein revoke the motor vehicle dealer license of Columbia Motor Sales. RECOMMENDED this 8th day of July, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1788 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Division of Motor Vehicles Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-7(1-7), 8 & 9(7), and 10- 13(8-11). Proposed finding of fact 14 is unnecessary. COPIES FURNISHED: Michael J. Alderman Assistant General Counsel Division of Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, FL 32399-0500 Stephen M. Witt Attorney at Law Post Office Box 2064 Lake City, FL 32056
The Issue Whether Respondent, a licensed general lines agent, committed the offenses alleged in the Administrative Complaint and, if so, what penalties should be imposed.
Findings Of Fact The Department is a licensing and regulatory agency of the State of Florida charged with, among other duties, the responsibility and duty to enforce the provisions of the Florida Insurance Code, which consists of Chapters 624 through 632, 634, 635, 636, 641, 642, 648, and 651, Florida Statutes (2006). See § 624.307(1), Fla. Stat. (2006). Respondent has been licensed in the State of Florida as a general lines (property and casualty) insurance agent since January 2001, with license identification number D063850. On or about February 17, 2005, State Attorney Lawson Lamar filed a one-count information in the Circuit Court of the Ninth Judicial Circuit, Orange County, charging Respondent with making a false and fraudulent motor vehicle insurance application, a third degree felony pursuant to Section 817.236, Florida Statutes (2005). Respondent was accused of having pre- dated an application for insurance in order to illegally collect insurance proceeds. On or about October 25, 2005, Respondent entered a plea of nolo contendere to the charge. Adjudication of guilt was withheld, and Respondent was placed on probation for a period of 18 months and ordered to perform 50 hours of community service and pay restitution to the victim. The evidence presented was insufficient to demonstrate that Respondent failed to inform the Department of her nolo contendere plea as required by Subsection 626.621(11), Florida Statutes (2006), or that she listed with the Department a business address at an agency with which she was no longer employed in violation of Section 626.551, Florida Statutes (2006).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department enter a final order finding Respondent guilty of violating Subsections 626.611(7) and (14), Florida Statutes (2006), as alleged in Count I of the Administrative Complaint, and revoking Respondent's licensure. DONE AND ENTERED this 16th day of May, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 16th day of May, 2007.
The Issue The issues are whether Respondent parked a motor vehicle on private property where the public has a right to travel by motor vehicle; whether Respondent displayed the motor vehicle for sale without a supplemental license for a place of business that is not contiguous to the originally licensed premises in violation of Section 316.1951 and Subsection 320.27(5), Florida Statutes (2002)1; and, if so, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating motor vehicle dealers in the state pursuant to Chapter 320. Respondent is licensed in the state as a motor vehicle dealer pursuant to license number VI-1005657. The licensed premises are located at 1333 Falkenburg Road, Tampa, Florida 33605. On July 7, 2007, a compliance examiner observed a 1992 Mercedes Benz parked on private property owned by a bail bond company located at 1345 Falkenburg Road, Tampa, Florida. The bail bond company had been out of business for some time. The vehicle was owned by the licensee and displayed one of the licensee's price stickers. The vehicle identification number is WDBFA66E0NF050462. The property of the bail bond company was contiguous with the licensed premises within the meaning of Subsection 320.27(5). The two properties share an unimpeded common boundary, and the vehicle at issue was parked approximately 53 feet from the common boundary. The property of the bail bond company was not a "permanent" additional place of business within the meaning of Subsection 320.27(5). The vehicle was parked on the property of the bail bond company temporarily. The compliance officer observed the vehicle on the property of the bail bond company for the period of time it required for the officer and his fellow employee to drive by the site, park, complete the paper work, and deliver it to a representative of the licensee. The bail bond premises were not a place of business for Respondent. Respondent used the bail bond premises for temporary convenience to rearrange vehicles on the licensed premises. The Mercedes was a new addition to inventory. Respondent moved the Mercedes off the licensed premises while Respondent moved other vehicles away to create space needed for Respondent to showcase the Mercedes by displaying it on the corner of the licensed premises closest to the main street, and, incidentally, a corner shared with the contiguous premises owned by the bail bond company. The vehicle was not located on private property where the public has a right to travel within the meaning of Subsection 316.1951(1). The vehicle was parked on a grassy area, parallel to a row of bushes. If it were shown the public had a right to travel by motor vehicle on the driveway of the closed bail bond business, it is undisputed that the public had no right to travel by motor vehicle on the contiguous grassy area. In any event, it is less than clear and convincing that Respondent parked the vehicle on private property for the "principal purpose and intent" to display the vehicle for sale.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the alleged violations. DONE AND ENTERED this 23rd day of May, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of May, 2008.
