The Issue The issue for consideration herein is whether the Petitioners, MISSCO, GENERAL, AND INTERSTATE should be placed on the convicted vendor list pursuant to Section 287.133 Florida Statutes (1991).
Findings Of Fact The facts stated in the Joint Stipulations to the extent set forth below are hereby adopted as findings of fact: On April 9, 1993, DMS issued notices of intent pursuant to Section 187.133(3)(e)(1), Florida Statutes. Jt. Stips. Appen. at pp. 72-73. On April 13, 1993, MISSCO filed petitions with DMS for a formal hearing pursuant to Section 120.57(1), Florida Statutes, to determine whether it is in the public interest for MISSCO, GENERAL, or INTERSTATE to be placed on the Florida Convicted Vendor List pursuant to Section 287.133, Florida Statutes. Jt. Stips. Appen. at p. 74-77. Subparagraph 287.133(3)(e)e., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the convicted vendor list. On April 5, 1991, General Equipment Manufacturers, Inc., (hereinafter "General"), a Mississippi corporation, and wholly owned subsidiary of MISSCO Corporation, was convicted of the commission of a public entity crime as defined within subsection 287.133(1)(g), Florida Statutes. Jr. Stips. p. 1, Appen. at pp. 41-43. A criminal information was filed in the United States District Court for the Southern District of Mississippi against General Equipment Manufacturers, Inc., alleging a violation of Section 1001, Title 18, United States Code and applicable Federal Acquisition Regulations which occurred on or about December 2, 1988. Jt. Stips. p. 1, Appen. at p. 40. The criminal information filed in the United States District Court, Southern District of Mississippi charged General with falsely representing on or about December 2, 1988 that the equipment schedule and price list submitted to the General Services Administration (hereinafter GSA) was General's established commercial price list. (Jt. Stips. p. 2, Appen. at p. 40. Upon entry of a plea of guilty, the Court entered a judgement against General which was filed April 5, 1991. The judgement required payment of a special assessment of $200, a fine in the amount of $10,000, without interest, and restitution in the amount of $28,000. Jt. Stips. p. 2, Appen. at pp. 40-48. The GSA issued Solicitation No. FCGS-X8-38010-N for FSC Group 66 Part II, Section P, Laboratory/Pharmacy Furniture. General submitted an offer dated August 18, 1988, and signed by Charles H. Wright, General Manager of General's SystaModules Division. In connection with its offer, General submitted its purported commercial price list dated January 31, 1987. Mr. Wright certified in Section M-FSS-330, M.3, Basis for Price Negotiation, Item (c), Certificate of Established Catalog or Market Price, that: The price(s) quoted in General's proposal is based on established catalog or market prices of commercial items, as defined in FAR 15.804-3(c), in effect on the date of the offer or on the dates of revisions submitted during the course of negotiations. Substantial quantities of the items have been sold to the general public at such prices. All of the data, including sales data, submitted with General's offer are accurate, complete, and current representations of actual transactions to the date when price negotiations are concluded. By letter dated December 2, 1988, Mr. Wright, in his capacity as General Manager of General's SystaModules Division, certified on behalf of General that: . . . all data submitted with General's offer pursuant to the discount schedule ad marketing data sheets and any other data submitted as as part of General's offer on Solicitation FGS-X8-38010-N are current, accurate, and complete a of the conclusion of negotiations, which occurred on December 2, 1988. Jt. Stips. p. 2-3, Appen. at pp. 51-53. On the basis of General's offer on Solicitation No. FGS-X8-38010-N, the GSA awarded General Contract No. GS-00F-06709 on December 13, 1988. The contract was for the period February 1, 1989, through January 31, 1992. Jt. Stips. p. 3-4, Appen. at p. 53. An investigation by the Federal Bureau of Investigation determined that General provided the GSA with fabricated price lists in connection with FGS-X8-38010-N. Jt. Stips. p. 4, Appen. at pp. 53-54. The details of the criminal information against General are discussed in the findings and determination made by the GSA Office of Acquisition Policy, dated May 18, 1992, which are incorporated herein by reference. Jt. Stips. Appen. at pp. 49-71). Particular findings are as follows: Federal debarment was imposed on General and its corporate officials Messrs. Wright and Majure. Jt. Stips. Appen. at p. 50. The debarments were effective throughout the Federal Executive Branch. The debarment precluded the award, renewal, or extension of federal contracts. Jt. Stips. Appen. at p. 50. Debarment proceedings were initiated by separate notices dated November 1, 1990 based on a referral from the Federal General Services Administration (GSA), Office of Inspector General (OIG). Jt. Stips. Appen. at p. 51. General bid on GSA Solicitation No. FGS-X3-36426-N and in connection with its offer General submitted a "dealer retail price list," and certified that: its prices were based on established catalog or market prices, substantial quantities of the items had been sold to the general public at said prices: and that all of the data submitted with its offer was accurate, complete and current representations of actual transactions up to the date when price negotiations were concluded. Jt. Stips. Appen. at p. 51. General's offer on the solicitation was accepted and it was awarded contract number GS-00F-70316 on April 19, 1984. Jt. Stips. Appen. at p. 52. On June 28, 1985 General made the same representations as to GSA Solicitation No. FGS-X8-38000-N for laboratory and pharmacy furniture. The award was made to General on December 9, 1985. Jt. Stips. Appen. at p. 52. Identical representations were made by General in response to GSA Solicitation No. FCGS-X8-38010-N issued on July 7, 1988. The solicitation was for laboratory and pharmacy furniture. The award was made to General on December 13, 1988. Jt. Stips. Appen. at p. 53. Criminal Information Number J90-00080(B) was filed in the U.S. District Court for the Southern District of Mississippi on November 15, 1990. The information was based on the FBI investigation of General's submission of false commercial price lists to GSA. The criminal information charged General with violating Title 18, U.S.C. 1001 in connection with its offer on Solicitation No. FGS-X8-38010-N. It alleged that General knowingly, willfully, and falsely represented to GSA that the equipment schedule and price lists submitted with General's 1988 offer was General's established commercial price list. Jt. Stips. Appen. at p. 54. General pled guilty to Criminal Information No. J90-00080(B) on December 19, 1990 and was ordered to pay a fine of $10,000 and to make just restitution to the GSA in the amount of $28,000. The conviction was also used as the basis for the federal debarment of General. Jt. Stips. Appen. at p. 54. Mr. Wright and Mr. Majure were also debarred by virtue of their conduct in connection with the General conviction. Jt. Stips. Appen. at pp. 54- 59. General and MISSCO are affiliated companies. General is a wholly-owned subsidiary of MISSCO. MISSCO is directed and governed by its executive committee which acts in lieu of the board of directors. Mr. Majure was a director of MISSCO, a member of MISSCO'S executive committee, a senior vice president of MISSCO, and president, director, and general manager of General. Jt. Stips. Appen. at p. 59. Mr. Majure held a position of substantial responsibility in both MISSCO and General, and through MISSCO's control group is accountable for the circumstances of General's crime. Jt. Stips. Appen. at p. 60. A decision not to impose federal debarment on MISSCO was predicated on MISSCO management's decision to ensure that it did not supply the Federal government with the same goods and services formerly provided by General during the period of General's debarment: MISSCO management made a commitment to emphasize ethical business practices: the people responsible for General's crime were no longer employed by MISSCO: the GSA administrative record (with the exception of General) does not indicate a lack of business integrity or poor performance on federal contracts. Jt. Stips. Appen. at pp. 61-63. Federal debarment of General was predicated upon the following: conviction of the crime of making false statements posed a substantial risk to government business dealings: General submitted false information on solicitations over an extended period of time: General fabricated price lists and false certification son two prior solicitations: General's crime posed a substantial danger to the integrity of the Federal government's MAS program: the accountable individuals for the crime were high-ranking officials at General. Jt. Stips. Appen. at pp. 63-66. The federal debarment proceedings found mitigating factors in that: the parties pled guilty and cooperated with the Department of Justice throughout the investigation: the parties cooperated with GSA throughout the debarment proceedings: General was not charged with deliberate overcharges on its federal MAS contracts: General promptly paid its fine and restitution: General has made good faith efforts to undertake remedial action. Jt. Stips. Appen. at pp. 68-69. On April 9, 1993, Respondent issued Notices of Intent pursuant to Section 287.133(3)(e)1, Florida Statutes, which were received by the Petitioners. Jt. Stips. p. 5, Appen. at pp. 72-73. On April 13, 1993, Petitions filed petitions pursuant to Section 287.133(3)(e)2, Florida Statutes, and Section 120.57(1), Florida Statutes, requesting an order determining that it is not in the public interest for Petitioners to be placed on the State of Florida Convicted Vendor List. Jt. Stips. p. 5, Appen. at pp. 74-75. MISSCO is a holding company which has a number of operating divisions and two wholly-owned subsidiary corporations, General Equipment Manufacturers (General) and MISSCO Exports Corporation (Exports). Jt. Stips. p. 2, Appen. at pp. 35-36. Interstate of Florida is a Division of MISSCO and is a dealer (re- seller) of General's products. Jt. Stips. p. 2. General and MISSCO are commercially distinguishable and they do not occupy the same facilities. MISSCO's primary lines of business are distribution of school equipment and supplies, office equipment and supplies, and commercial printing. Jt. Stips. p. 4. MISSCO Exports is an entity formed solely for accounting and tax purposes, has no employees, and does not engage in substantive commercial operations. Jt. Stips. p. 4. MISSCO has extensive dealings with the federal government, as supplier of goods manufactured by other entities. General is the only MISSCO entity that contracts with the government under the Multiple Awards Schedule (MAS) program. General's primary line of business is manufacturing institutional furniture. Jt. Stips. pp. 4-5. In compliance with paragraphs 287.133(3)(a) and (B), Florida Statutes, MISSCO made timely notification to the DMS and provided details of the conviction of General, by letter dated March 24, 1992 and provided copies of the criminal information, judgement and related correspondence. Jt. Stips. p. 5, Appen. at pp. 37048. Payment of the fine in the amount of $10,000 and restitution in the amount of $28,000 imposed by the conviction and judgement entered April 5, 1991 were promptly paid by General on April 15, 1991. Jt. Stips. pp. 5-6, Appen. at pp. 47-48. Subsequent to the criminal information filed in the United States District court, Southern District of Mississippi in November of 1990, General entered a plea of guilty to the charge, thus eliminating the necessity for further investigation and trial. Jt. Stips. p. 6. The GSA in its findings and determination dated May 18, 1992, cited mitigating factors favorable to General and MISSCO. The factors included, cooperation with the Department of Justice throughout its investigation; cooperation with the GSA throughout the debarment proceeding; constructive dealings by counsel for MISSCO and General with the GSA Office of General Counsel on issues relating to the restrictions on MISSCO and General's business relationship with the government and government prime contractors. Jt. Stips. p. 6, Appen. at pp. 68-69. MISSCO fully cooperated with the DMS in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. Jt. Stips. p. 6. MISSCO formally filed its disclosure pursuant to Section 287.133(3)(b), Florida Statutes with the DMS by letter dated March 24, 1992, together with exhibits attached thereto. The letter specifically referred to the criminal information filed against General and the judgement entered by the Federal District Court. A copy of the criminal information and judgement were enclosed with the letter, together with a copy of correspondence between MISSCO and the GSA. Jt. Stips. pp. 8-9, Appen. at pp. 37-39. In response to a request dated April 15, 1992 from the DMS for additional information, MISSCO promptly furnished all such information. Jt. Stips. p. 9. At its meeting held December 17, 1992, the Board of Directors of MISSCO was convened and all of the offices then held by Mr. James T. Majure, former President of General, were declared vacant and other persons were elected to those positions. Jt. Stips. p. 7, Appen. at pp. 2, 67, 70. Mr. Charles Wright was retired from General under a medical disability prior to 1990. Jt. Stips. p. 7. MISSCO Corporation fully cooperated with the GSA by proposing and implementing remedial measures including the presentation of an Ethics Seminar by Mr. Norman Roberts, past chairman of the American Bar Association's section on government contracting. Jt. Stips. p. 7. MISSCO revised its corporate Code of Ethics, revised its Employee Handbook, installed an 800 hotline telephone number permitting employees to communicate any concerns regarding business ethics, designated a Corporate Vice President as the Ethics Compliance Officer, appointed a committee of three corporate executives to monitor corporate business activities, and revised its internal audit procedures to insure that no cash is unaccounted for which might be used for the purpose of kickbacks. Jt. Stips. pp. 7-8, Appen. at pp. 28-33, 62-63. MISSCO's management undertook prompt and verifiable action to comply with the restrictions imposed on MISSCO's business dealings with the government after notices of proposed debarment. General promptly and voluntarily withdrew from the GSA contract that was tainted by the submission of a fabricated commercial price list during negotiations. Jt. Stips. p. 8. MISSCO had a code of business ethics in place when the circumstances leading to General's conviction arose. The code was amended following the initiation of debarment proceedings to specifically address the importance of truthful certifications and providing accurate information in connection with business transactions with the government. Jt. Stips. p. 8. MISSCO substantially expanded its corporate ethics compliance program and undertook extensive training in business ethics. A detailed "ethics audit" was undertaken by MISSCO, and the results of this audit were provided to the GSA. Jt. Stips. p. 8, Appen. at pp. 10-22, 28-34. General sells its products through a dealer network and not through factory direct sales. General has a dealer agreement with Interstate of Florida for the sale of its products in Florida to private and public entities. Jt. Stips. p. 9. Interstate of Florida, a division of MISSCO Corporation of Jackson, is a dealer (re-seller) of General's products. There are other dealers throughout the United States which also market and sell General's products. Interstate of Florida had gross sales of approximately $6.8 million in fiscal year 1990-91. Approximately 99 percent of those sales were to public entities. Jt. Stips. p. 9. Interstate of Florida is primarily an educational sales company which sells educational contract furnishings such as laboratory casework, auditorium seating, and folding bleachers. It has conducted business with almost every school district in Florida. The largest transactions have been conducted with the school districts of Dade and Orange Counties in Florida. The largest municipal transactions have been conducted with the City of Tallahassee. Jt. Stips. p. 10.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department not place the names of the Petitioners on the Florida Convicted Vendor List. DONE and ENTERED this 29th day of July, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 29th day of July, 1993. COPIES FURNISHED: William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Susan B. Kirkland, Esquire Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 C. Graham Carothers, Esquire Ausley, McMullen, McGehee Carothers & Proctor Post Office Box 391 Tallahassee, FL 32392 Terry A. Stepp, Esquire Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue The issue presented here concerns the question of whether the Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, should grant the Petitioner, Crown Pontiac, Inc., a motor vehicle dealer license in accordance with Section 320.642, Florida Statutes (1979), on the basis that the Petitioners in this cause, in the face of the challenge to Crown's licensure offered by the Respondent, B & L Motors, Inc., d/b/a Bert Jackson Imports, have proven that the existing Fiat automobile dealers in the proposed territory or community for licensure are providing inadequate representation for Fiat.
Findings Of Fact On May 5, 1980, the Petitioner Fiat Motors of North America, Inc., issued a letter of intent to grant a Fiat franchise to the Petitioner Crown Pontiac, Inc., d/b/a Crown Sportscar Center to sell Fiat automobiles. (See Petitioner Fiat's Exhibit No. 13 admitted into evidence.) The Fiat dealership would be located at the sportscar facility of Petitioner Crown's overall operation which is found at 5301 34th Street North, St. Petersburg, Florida. The Respondent B & L Motors, Inc., d/b/a Bert Jackson Imports, having learned of Fiat's intentions to grant the franchise to Crown, protested Crown's licensure before the Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, that protest having been made in keeping with the terms of Section 320.642, Florida Statutes (1979). 2/ After receiving the Respondent, B & L Motors' Petition in protest, the Division of Motor Vehicles forwarded the case to the State of Florida, Division of Administrative Hearings for hearing pursuant to Section 120.57(1), Florida Statutes. That formal hearing was held on December 4, 1980. PARTIES Petitioner Fiat is an automobile distributor that offers Fiat motorcars for sale in the United States through its several franchise retail outlets. Its model line includes two sedans; the Brava and Strada, and two sports convertibles; the X1-9 and the Spider. The Petitioner Crown Pontiac is a retail outlet for the General Motors, Pontiac automobile, JRT-British Leyland, MG, Triumph, Jaguar and Rover, Peugeot, Nissan, and Honda, through its stores in St. Petersburg, Florida. It is the intention of Crown to sell the Fiat line through the sportscar part of its operation which now handles JRT-British Leyland products. The Respondent B & L Motors, is a retail outlet for Volkswagen automobiles, Fiats and Lancias. That dealership is located in Clearwater, Florida, within Pinellas County, Florida, the county in which St. Petersburg is found. The Respondent, Division of Motor Vehicles is an agency of the State of Florida with regulatory responsibility and authority, among those duties being the requirement to approve or disapprove the application for new motor vehicle dealer licenses in Florida sought by the prospective franchisees of the various automobile manufacturers and distributors. HISTORY OF FIAT DEALERSHIPS IN PINELLAS COUNTY, FLORIDA From 1965 through March 1, 1979, Fiat Motors of North America, Inc., had a licensed franchisee in St. Petersburg, Florida, the last of those Fiat dealers in St. Petersburg being Fifth Avenue Motors, Ltd., d/b/a International Motor Cars Limited. Notice of termination of the franchise of International was sent from Fiat on December 1, 1978, leading to the ultimate cancellation of the Florida license on March 2, 1979. Beginning 1967, Fiat has had a licensed franchise outlet in Clearwater, Florida, with B & L Motors becoming the franchise outlet in Clearwater in late 1974, and continuing to operate as a franchise outlet up through the time of the final hearing in this cause. Subsequent to the loss of the franchise by International and the cancellation of its Florida license on or about March 2, 1979, there has been no Fiat dealership in St. Petersburg, Florida. Crown had attempted to obtain the Fiat franchise by acquiring the Fiat franchise and Mercedes franchise held by Fifth Avenue Motors, Ltd., d/b/a International Motor Cars Limited. This agreement was to be consummated through an asset purchase agreement, a copy of which may be found as Petitioner Crown's Exhibit No. 2 submitted into evidence. This agreement was executed on November 1, 1978, but its terms and conditions were never carried out due to difficulty which Crown had in coming to terms with Mercedes on the purchase of that franchise. At present there is an ongoing law suit on that subject. In addition, vandalism and theft of certain parts that Crown was to purchase from Fifth Avenue has held up the contract. Fiat and Crown had begun their negotiations in October 1978 leading Fiat to make overtures to Crown to offer a franchise in early 1979, which was rejected by Crown at that time for reasons discussed above. There was contact between Crown and Fiat from March 1979 through March of 1980, and sometime in April or May Crown determined to go forward with the franchise agreement, notwithstanding the International dispute. This led to the May 5, 1980, intent to grant by Fiat and the ensuing request by Crown that the State of Florida, Division of Motor Vehicles issue a dealer license. (In connection with the question of a grant of a license to operate a Fiat dealership in St. Petersburg, the Respondent Division of Motor Vehicles had had a past policy of allowing a manufacturer to replace a dealer, within one year of the cancellation of the prior license, without entertaining protests from other competing dealers provided, further, the prior dealer lost its franchise agreement with the manufacturer. In this case, the one year grace commenced on or about March 2, 1979, and expired on or about March 2, 1980. See Joint Exhibit No. 1, affidavit of Henry C. Noxtine.) FIAT'S MARKET SHARE IN THE UNITED STATES, MAJOR MARKETS, PINELLAS COUNTY, ST. PETERSBURG AND CLEARWATER Petitioner Fiat's Exhibits Nos. 1 through 4, admitted into evidence are charts which depict the sale of import automobiles in the United States, with particular emphases on the sale of Fiat automobiles in the United States, Florida, Clearwater and St. Petersburg. Exhibit No. 1 shows the number of import auto sales as a percentage of total automobile sales in the years 1977, 1978, 1979, and the first nine months of 1980, for given market areas. From this chart, it can be seen that import automobile sales range from 17.3 percent through 18.4 percent, in 1977, depending on whether the study related to the United States, Florida, Clearwater or St. Petersburg to 27.6 percent through 28.9 percent for the first nine months of 1980, depending on which of the above referenced market areas was under consideration. Although the trend within the import market for automobiles showed an upturn as a percentage of total sales from 1977, through the first nine months of 1980, Exhibit No. 2 demonstrates that Fiat's percentage of total import sales range from a high United States percentage of 3.2 percent in 1977, to 1.6 percent in September 1980, thereby depicting a decline in overall sales of Fiat automobiles as a percentage of total imports sold in the United States. Of particular significance is the fact that the number of Fiat automobiles sold as a percentage of total imports in St. Petersburg is 2 percent in 1977, and 1.9 percent in 1978, at a time when a separate Fiat dealer was located in St. Petersburg and with the advent of the failure of the St. Petersburg dealership in 1979, the sales were 1.2 percent and in the first nine months of 1980, in which B & L was the sole Pinellas County dealer, those sales were only .5 percent in St. Petersburg. In the successive years, 1977 through the first nine months of 1980, Fiat sales in Clearwater were 2.7 percent, 2.2 percent, 2.7 percent and 1.8 percent, respectively. The figures related to Fiat sales in Clearwater in the years 1979 and 1980 and sales of Fiats in St. Petersburg in those two reporting years show a disparate break out in numbers of sales in Clearwater and St. Petersburg in those reporting years when contrasted with the 1977 and 1978 reporting years, which show the percentage of sales in Clearwater and St. Petersburg to be much closer. There are approximately 800,000 people in Pinellas County, Florida, with approximately 250,000 of those persons residing in St. Petersburg and 350,000 in the overall St. Petersburg area, which is in the southern part of the county. There is another major population center in the northern part of the county. Clearwater is the principle municipality in that area. St. Petersburg and Clearwater constitute separate and identifiable trading areas and territories within Pinellas County, Florida. In this connection, Exhibit No. 3 admitted into evidence shows Fiat's performance in 1979, in similar markets to that of Clearwater or St. Petersburg, outlining the Fiat registrations and the percentage of registrations of Fiat automobiles in those communities. This chart should be read in conjunction with Exhibit No. 4, which is admitted into evidence which shows the number of import sales in the St. Petersburg and Clearwater territories and the number of Fiat sales in those territories, together with the number of Fiat sales necessary to gain the 3.5 percent penetration and the increase in number of units sold to achieve that goal. There is a further hypothetical to demonstrate sales penetration at 5 percent and the number of prospective sales if the goal is achieved. Again, this is for the year 1979. Although the last reporting period, i.e., the first nine months of 1980, shows that the overall Fiat sales nationwide are 1.6 percent and the Florida sales are 2.2 percent, sales in what Fiat has called its "major markets" approximated 2.7 percent in 1979. It is within the "major markets" that Fiat intends to offer its future emphasis and these areas are felt to be crucial to the continued success of Fiat Motors. Sales in Clearwater and St. Petersburg, which are considered "major markets," range from .5 percent in St. Petersburg to 1.8 percent in Clearwater for the reporting period 1980, far below the 2.7 percent or even the national and Florida figures for 1980, when examining performance in St. Petersburg. The balance of Exhibits Nos. 1 through 4 by the Petitioner Fiat, although not discussed in this Recommended Order are found to be factually correct. COMPETITION Within Pinellas County, Volkswagen has two franchise dealers; British Leyland has two franchise dealers; Honda has two franchise dealers; Toyota has three franchise dealers; Dodge has three franchise dealers; Plymouth has three franchise dealers; Subaru has three franchise dealers; and Chevrolet and Ford have four franchise dealer outlets. Again referring to the charts Exhibits Nos. 1 through 4, they would show an increase in percentage of market share by the import automobile industry at a time when the overall numbers of automobile sales have declined, and of those automobile sales in decline, at lease two competitive import product lines, Volkswagen and British Leyland, have been part of the picture of general decline. Nonetheless, they have continued to have two franchises within Pinellas County. EFFECT OF INCREASING FIAT DEALERSHIPS IN PINELLAS COUNTY By increasing the number of Fiat dealerships from one to two, it increases the presence of the Fiat name in the territory by 100 percent. It adds a dealership with proper facilities for furnishing warranty and other repair services, by an organization that has already gained familiarity with the Fiat line; it creates the opportunity for the exchange of vehicles and parts between dealers in the county; it creates the opportunity for the public to engage in comparison shopping and it reduces the amount of time which South County owners must travel to receive factory approved service which now ranges from thirty minutes to an hour if the service is to be obtained from B & L Motors. All of these items relate to the success of Fiat and its franchisees in marketing the Fiat product. In this regard, the statistics offered in this hearing demonstrate that the Respondent B & L has continued to keep pace with Fiat's needs in the market in Clearwater, but it has failed take up the slack that occurred when International lost its franchise. The Petitioner Crown is in a position to assist Fiat in regaining this market share without undue detriment to the Respondent B & L. Crown, in its other automobile sales activities, has primarily concentrated on the southern half of Pinellas County, which is the St. Petersburg area or territory and it would use that experience in the market area in attempting to sell Fiat automobiles to the consuming public.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Crown Pontiac, Inc., d/b/a Crown's Sportscar Center, to be licensed as a Fiat dealer in St. Petersburg, Florida, be GRANTED. DONE AND ENTERED this 13th day of February 1981 in Tallahassee, Florida. CHARLES C. ADAMS 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 13th day of February 1981.
The Issue The issue posed for decision herein is whether or not the Petitioner is subject to the Florida corporate income tax for tax years 1972, 1973, 1974 and 1975 plus accrued penalties and interest since July 7, 1977, the date Petitioner was mailed a proposed notice, of deficiency by the Respondent, Department of Revenue.
Findings Of Fact Based on the evidence adduced at the hearing herein; the documentary evidence received; the Respondent's memorandum in support of the assessed deficiency; the Petitioner's memorandum in response thereto; and the entire record compiled herein, the following relevant facts are found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent enter a Final Order herein denying Petitioner's protest of the proposed deficiency and penalties as set forth hereinabove. RECOMMENDED this 14th day of March, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 14th day of March, 1983.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensure and regulation of real estate brokers and salespersons in the State of Florida pursuant to chapters 455 and 475, Florida Statutes. At all times material to this action, Respondent was licensed a real estate sales associate in the State of Florida. On November 18, 2010, Petitioner filed an Administrative Complaint against Respondent, which reads in pertinent part: On or about October 5, 2007, Respondent prepared a sales purchase contract on behalf of Anne Vincent (Buyer) and Donald Gilchrest (Seller) for a property known as 6521 SW 9th Street, Pembroke Pines, Florida 33023 for $250,000. Respondent represented in the sales and purchase contract for the Subject Property that a $2,000 deposit was held in escrow by Title Sense Inc. Respondent communicated to the Sellers that he had received a check in the amount of $2,000 from the Buyer. * * * 10. Respondent failed to place with Respondent's registered employer any funds entrusted to Respondent by the Buyer for the Subject Property. * * * 12. Respondent failed to deliver a copy of the sales and purchase contract to Respondent's Broker, Edgar Rhenals. Based upon the foregoing, Petitioner alleged that Respondent violated section 475.25 (1)(b), (1)(e), and (1)(k), Florida Statutes, as well as Florida Administrative Code Rule 61J2-14.009. As discussed in the preliminary statement of this Recommended Order, Petitioner's sole witness at the final hearing was Ms. Krystal Cordo, an investigator employed with the Division of Real Estate. Other than Ms. Cordo's description of statements made by Respondent during the investigation——in which Respondent denied all wrongdoing——Ms. Cordo's testimony and investigative report consisted entirely of hearsay, with no applicable hearsay exceptions. In light of the complete absence of incriminating non-hearsay evidence, Petitioner properly conceded that Respondent's guilt could not be established in connection with any of the charges.2 Accordingly, the undersigned finds, as a matter of ultimate fact, that Respondent is not guilty of Counts I, II, and III of the Administrative Complaint.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 28th day of March, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 March, 2011.
The Issue The issue for determination is whether Petitioner should be assessed sales and use tax by Respondent, and if so, how much and what penalty, if any, should be assessed.
Findings Of Fact Aircraft Trading Center, Inc. (Petitioner), is a corporation organized and existing under the laws of the State of Florida, having its principal office at 17885 S.E. Federal Highway, Tequesta, Florida. Petitioner is engaged in the business of purchasing aircraft for resale. During all times material hereto, Petitioner was registered as an aircraft dealer with the United States Department of Transportation, Federal Aviation Administration (FAA) and registered as a retail dealer with the State of Florida, Department of Revenue (Respondent). The selling price of Petitioner's aircraft range from one million to twenty-five million dollars and helicopters from two hundred thousand to three million dollars. Normally, Petitioner purchases an aircraft, without having a confirmed buyer. Petitioner purchases an aircraft based upon in-house research which shows a likelihood that the aircraft can be resold at a profit. Petitioner's aircraft is demonstrated to potential buyers/customers. The customers require a demonstration to determine if the aircraft meets the particular needs of the customer. The demonstration could take one day or as long as two weeks. During the demonstration, the customer pays the expenses associated with flying the aircraft. Petitioner uses two methods to determine the costs of demonstration. In one method, the cost is determined from a reference source utilized in the industry to show the cost of operating a particular type of aircraft. In the other method, the customer pays Petitioner's actual out-of- pocket cost. No matter which method is used, the charges to the customers are listed as income on Petitioner's bookkeeping books and records, per the advice of Petitioner's certified public accounting (CPA) firm. Petitioner remains the owner of the aircraft during the demonstration and until the sale. Also, during demonstration, Petitioner maintains insurance coverage on the aircraft and is the loss payee. In an attempt to make sure "legitimate" customers are engaged in the demonstrations, Petitioner screens potential buyers to make sure that they have the resources to purchase one of Petitioner's aircraft. For sales to buyers/customers residing out-of-state, Petitioner utilizes a specific, but standard procedure. Such customers are provided a copy of the Florida Statute dealing with exempting the sale from Florida's sales tax if the aircraft is removed from the State of Florida within ten (10) days from the date of purchase. Florida sales tax is not collected from the buyer if the buyer executes an affidavit which states that the buyer has read the Florida Statute and that the buyer will remove the plane from Florida within ten (10) days after the sale or the completion of repairs and if the bill of sale shows an out-of-state address for the buyer. When an aircraft is sold, Petitioner's standard procedure is to prepare a purchase agreement and after receiving payment, Petitioner prepares a bill of sale. Petitioner sends the bill of sale to a title company in Oklahoma which handles all of Petitioner's title transfers. The title company records the bill of sale, registers the change of title with the FAA and sends Petitioner a copy of the title. For all sale transactions, Petitioner maintains a file which includes the affidavit, the bill of sale, and a copy of the title. Respondent conducted an audit of Petitioner for the period 2/1/87- 1/31/92 to determine if sales and use tax should be assessed against Petitioner. All records were provided by Petitioner. The audit resulted in an assessment of sales and use tax, penalty, and interest against Petitioner. Respondent assessed tax on the sale of a helicopter and on certain charges made by Petitioner to its customers as a result of demonstrations. Regarding the helicopter, Respondent assessed tax in the amount of $18,000.00 for the helicopter transaction. By invoice dated 7/10/89, Petitioner sold the helicopter to Outerscope, Inc., for $300,000.00. Outerscope was an out-of-state company. Petitioner used its standard procedure for the sale of aircraft and sales to nonresidents. Petitioner did not obtain proof that the helicopter was removed from the State of Florida, and Petitioner has no knowledge as to whether it was removed. As to the charges by Petitioner for demonstrations, Respondent assessed tax in the amount of $72,488.55. Respondent determined the tax by taking an amount equal to 1 percent of the listed value of the aircraft demonstrated and multiplying that number by 6 percent, the use tax rate. Respondent relied upon the records and representations provided by Petitioner's bookkeeper as to determining which aircraft were demonstrated, the value of the aircraft and the months in which the aircraft were demonstrated. Several transactions originally designated as demonstrations have been now determined by Petitioner's bookkeeper not to be demonstrations: The February 4, 1987 transaction with Ray Floyd. The July 10, 1988 transaction involving Trans Aircraft. The May 2 and 12, 1989 items for Stalupi/Bandit. The July 12, 1989 item involving Bond Corp. The July 18, 1989 item involving Seardel. The November 28, 1990 item involving J. P. Foods Service. Petitioner's CPA firm advises it regarding Florida's sales and use tax laws. At no time did the CPA firm advise Petitioner that its (Petitioner's) demonstrations were subject to sales and use tax and that it (Petitioner) was required to obtain proof that an aircraft had been removed from the State of Florida.
Recommendation Based upon the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order assessing sales and use tax for the period 2/1/87 - 1/31/92 against Aircraft Trading Center, Inc., consistent herewith. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of July 1995. ERROL H. POWELL 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 10th day of July 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner Partially accepted in findings of fact 1 and 2. Partially accepted in findings of fact 2 and 3. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Rejected as subordinate. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in findings of fact 5 and 14. Rejected as subordinate. Partially accepted in findings of fact 8 and 9. 12 and 13. Partially accepted in finding of fact 13. 14. Partially accepted in findings of fact 5 and 16. Respondent Partially accepted in findings of fact 11 and 12. Partially accepted in finding of fact 12. Partially accepted in finding of fact 13. Partially accepted in finding of fact 13. Also, see Conclusion of Law 20. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. 7 and 8. Partially accepted in finding of fact 6. 9. Partially accepted in finding of fact 7. 10 and 11. Partially accepted in finding of fact 14. 12. Partially accepted in finding of fact 5. 13-15. Partially accepted in finding of fact 9. NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the more credible evidence, argument, or conclusion of law. COPIES FURNISHED: Robert O. Rogers, Esquire Rogers, Bowers, Dempsey & Paladeno 505 South Flagler Drive, Suite 1330 West Palm Beach, Florida 33401 Lealand L. McCharen Assistant Attorney General Office of the Attorney General The Capitol-Tax Section Tallahassee, Florida 32399-1050 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera General Counsel Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue in this case is whether the Petitioner, A.L.S.S., Inc. (Petitioner), is entitled to a refund in the amount of $3,261.47, for sales tax paid on the purchase of a new automobile.
Findings Of Fact The Respondent is the state agency charged with the responsibility of collecting sales and use tax owed to the State of Florida. See § 213.05, Fla. Stat. (2006). At all times material to the allegations of this case, the Petitioner was a registered export dealer. The Petitioner routinely purchases new motor vehicles for export to foreign buyers. In this case, the Petitioner purchased a new motor vehicle and subsequently exported it to a buyer in Brazil. More specifically, on or about May 24, 2004, the Petitioner purchased a new 2004 Hummer from Williamson Cadillac- Hummer in Miami, Florida. At the time of the purchase, the Petitioner paid the sales tax associated with the purchase of the vehicle. The total sales tax paid was $3,261.47. The sale of the vehicle resulted in the Florida registration of the vehicle and issuance of a Florida title in the name of the Petitioner. From the automobile dealership the subject vehicle was loaded on a flatbed wrecker and transported to a warehouse at or near the Port of Miami. In anticipation of its shipment to Brazil, the vehicle was drained and prepared for exportation in accordance with applicable laws and regulations. The Petitioner never drove the vehicle on the streets of Miami-Dade County and it was not insured. It is undisputed that the subject vehicle was exported to an individual in Brazil. Thereafter, the Petitioner sought a refund of the sales tax paid on the subject vehicle. The Petitioner contacted the Department to seek the refund and maintains that a sales tax was inappropriate in this case as the purchased item was bought for exportation. The Department offered to refund the sales tax upon receipt of an assignment of rights from the new vehicle dealer (Williamson Cadillac-Hummer). When the Petitioner contacted Williamson Cadillac-Hummer for assistance in obtaining the refund, the automobile dealer refused to aide the Petitioner. Williamson Cadillac-Hummer is precluded by its contractual agreement with General Motors from making sales for exportation. The Petitioner knew this at the time of the purchase of the new Hummer. Under its contractual agreement, Williamson Cadillac-Hummer may not directly or indirectly sell new motor vehicles for export. As the transaction was deemed a new car sale to the Petitioner (with the Florida title of the vehicle being put in the Petitioner’s name), the Department declined to refund the sales tax even though the vehicle was in fact exported to Brazil. It is the Department’s position that a taxable transaction occurred when the new motor vehicle was sold and registered in this state. In this case, the transaction could not have occurred (per the dealer’s agreement with General Motors) as a new motor vehicle sale for export.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order denying the refund sought by Petitioner. DONE AND ENTERED this 24th day of August, 2007, in Tallahassee, Leon County, Florida. S J. D. Parrish 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 24th day of August, 2007. COPIES FURNISHED: Darlot A. Veloso, Jr., President A.L.S.S., Inc. 995 Northwest 72nd Street Miami, Florida 33150 Warren J. Bird, Esquire Assistant Attorney General Office of the Attorney General Revenue Litigation Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Bruce Hoffmann, General Counsel Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Tallahassee, Florida 32399-0100 James Zingale, Executive Director Department of Revenue The Carlton Building, Room 104 501 South Calhoun Street Tallahassee, Florida 32399-0100
The Issue Whether Respondent, a licensed pawn broker, had engaged in title loan transactions at, within, or adjoining a licensed pawnshop location, in violation of Section 539.001(12)(j), Florida Statutes (1997).
Findings Of Fact Having considered the evidence of record, the candor and demeanor of the witnesses, the following findings of fact are determined: Eau Gallie Pawn & Loan, Inc., d/b/a Eau Gallie Pawn, Inc. (hereinafter "Respondent"), is located at 2768 Sarno Road, Melbourne, Florida. Respondent is currently registered with the Department of Agriculture and Consumer Services as a pawnbroker. The president of Respondent is Dana D. Ferrell. Dana D. Ferrell is also the president of Eau Gallie Title Loan, Inc., and is doing business as a car title loan agent. In 1997, both businesses were operated out of the same building at 2768 Sarno Road, Melbourne, Florida, but there were separate entrances for both. In 1997, a change in the law required that pawnbrokers and car title loan agents could not operate together. When the law changed, Dana Ferrell leased space from a Hess Station at 2740 Sarno Road in a back office for the title loan business. The space was leased sometime in August or September 1997. A valid city and county occupational license was obtained for Eau Gallie Title Loan, Inc., at 2740 Sarno Road, Melbourne, Florida. The Hess Station is to the right of the pawnshop and is approximately 27-28 feet away from the pawnshop location at 2768 Sarno Road. They are neither adjacent, nor adjoining each other. In part, both the pawnshop and Hess Station share a common fence. One can go through a cut in the fence to get to the Hess Station. There is no other business between the pawnshop location and the Hess Station. There are no signs on either the outside or inside of the Hess Station to indicate there is a title loan business located inside the Hess Station in the back office. Investigator Bob Sonnenfeld went inside the Hess Station and only observed items common to a service station. He did not, however, inquire of anyone in the station if there was a title loan business there. During the morning of January 8, 1998, Investigator Bob Sonnenfeld, with the Department of Agriculture and Consumer Services, went to the pawnshop located at 2768 Sarno Road. At that location there were two persons working at the time. Investigator Sonnenfeld spoke to Ferrell and said he wanted to get a title loan on his wife's 1989 Honda Civic LX and was looking for a $500.00 loan. Ferrell gave Sonnenfeld two forms and explained how to fill one of them out. Ferrell told him to fill it out and bring it back. He was also told to bring his wife's car with him. At no time during the conversation was there any mention that the car title loan business was conducted at another location. Ferrell gave him a business card with the phone number and address of the pawnshop. However, the paper work that was given to Sonnenfeld bore the name "Eau Gallie Title Loan, Inc.," and had the address of the Hess Station and a phone number of (407) 259-9116. One of the forms explains title loans and has a line for a signature and the date. The form Sonnenfeld was asked to fill-out requires detailed information about the individual applying for a title loan. Investigator Sonnenfeld called (407) 259-9116 on various occasions and received no answer. On May 29, 1998, at 11:05 a.m., Investigator Robert Lastinger called (407) 259-9116 and spoke to "Dana" who answered the phone "Eau Gallie Title Loans." Investigator Lastinger asked about title loans and Dana told him to bring his title and car to 2768 Sarno Road. Dana gave directions to that location. The Hess Station location was never mentioned. No one employed by Ferrell works at the Hess Station. Only Ferrell and one employee work at the pawnshop location. Ferrell stays primarily at the pawnshop location. When (407) 259-9116 is called, it can be answered at the pawnshop as well as at the Hess Station or on Ferrell's cellular phone. Paperwork on title loans can only be done at the Hess Station by locking the pawnshop location, or if two people are working, one can walk over to the Hess Station. There is no locked fence area by the Hess Station. The pawnshop location does have a locked fenced area. On occasion a repossessed vehicle from a title loan transaction will be stored there. A repossessed vehicle was reported stolen from the locked fenced area in September 1997. When a person does not pay on the title loan, the vehicle can be repossessed and eventually sold. Ferrell will not process a title loan without the information that was on the paperwork given to Sonnenfeld. This paperwork is available at the pawnshop location. The paperwork for the title loans are completed at the Hess Station, but title loans are discussed at the pawnshop and potential customers are given the necessary documents there. The only matters to be completed are to write the loans and issue payment schedules. Neither investigator for Petitioner completed an auto title loan with either Respondent or Eau Gallie Title, Inc.
Recommendation It is, therefore, RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order finding that Respondent, Eau Gallie Pawn & Loan, Inc., violated Section 539.001(12)(j), Florida Statutes. It is further RECOMMENDED that Eau Gallie Pawn & Loan, Inc., be assessed an administrative fine of $2,000.00 and that it cease and desist from engaging in title loan transactions at, within, or adjoining its location. DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 29th day of March, 1999. COPIES FURNISHED: Lawrence Davis, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 J. Scott Lanford, Esquire J. Scott Lanford, P.A. 3125 West New Haven Avenue, Suite 200 West Melbourne, Florida 32904-3533 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether petitioner should recover $2,335 allegedly disbursed by respondent under Contract No. 3-11-038-005-005 to one Kenneth L. Jenks?
Findings Of Fact Kenneth L. Jenks of Franklin County was enrolled in a CETA program administered by the Bay County School Board at some point during 1983.
Recommendation It is, accordingly, RECOMMENDED that petitioner abandon its efforts to recover from respondent any monies claimed under Contract No. 2-11-038-005-005. DONE AND ENTERED this 8th day of June 1984 in Tallahassee, Florida. ROBERT T. BENTON, II 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 8th day of June 1984. COPIES FURNISHED: Lizanne Batey, Chief Bureau of Job Training Dept. of Labor & Employment Security Division of Labor, Employment & Training Tallahassee, Florida 32301 Charles Pettis, JTPA Coordinator Bay County School Board 3016 Highway 77 Panama City, Florida 32405 =================================================================
