Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner has leased the motor vehicle that is the subject of the instant controversy, a 1992 Merdedes-Benz 300SE (hereinafter referred to as the "subject vehicle"), from Bill Ussery Motors, Inc., an automobile dealership located in Coral Gables, Florida (hereinafter referred to as the "Dealership"), since October 30, 1991, when he took delivery of the vehicle. At the time of delivery, the subject vehicle was new. Thereafter, various problems developed with the subject vehicle. Petitioner reported these problems to the Dealership, but the Dealership was unable to completely rectify them within 18 months of the date of delivery. Petitioner drove the vehicle less than 24,000 miles during this 18-month period. Some of the problems that Petitioner reported during the first 18 months of his possession of the vehicle still persist today. On or about April 23, 1993, Petitioner sent a completed Motor Vehicle Defect Notification form to the manufacturer requesting that it "make a final attempt to correct the . . . reported . . defects." The manufacturer responded by sending the following letter, dated April 27, 1993, to Petitioner: This will acknowledge the Motor Vehicle Defect Notification form you completed, which was received by this office today. This letter shall serve as a written request to provide Mercedes-Benz of North America ("MBNA") with an opportunity to inspect, verify and if necessary, repair your vehicle. As you are aware, Bill Ussery Motors, Inc., located in Coral Gables, Fl., is a reasonably accessible repair facility. Mr. Eric Moore, Field Service Manager, will contact you to make an appointment to meet with you. If you have any questions or wish to discuss this matter further, please do not hesitate to call me at (904)443-2150. In or about December of 1993, Petitioner retained Joseph Portuondo, Esquire, who sent, on Petitioner's behalf, the following letter, dated December 13, 1993, to the manufacturer: As you know, Mr. Palaez has experienced such difficulty with his automobile that it led to his filing of a Motor Vehicle Defect Notification with you on April 23, 1993. Thereafter, on April 27, 1993, you directed Mr. Palaez to Bill Ussery [Motors], Inc. of Coral Gables, Florida, to attempt the last chance repairs to his automobile. Mr. Palaez complied with your instructions. However, the defects in the automobile remain unresolved and out of service days are well in excess of those required under the Lemon Laws of this state. Simply put, Mr. Palaez has a lemon for which we demand a remedy. As such, we hereby demand that Mr. Palaez be immediately refunded the full purchase price of the vehicle. In the event that you do not immediately provide a refund, we hereby demand that this matter be referred to the appropriate state-certified settlement program. Needless to say, if we are unsatisfied with this matter, we will proceed for relief to the Florida New Motor Vehicle Arbitration Board of the Office of the Attorney General. We trust that our position in this matter is clear. It is truly unfortunate that Mercedes-Benz and its dealer have chosen to treat Mr. Palaez so poorly as a customer that he has had to resort to judicial relief. In response to Portuondo's letter, the manufacturer sent him the following letter, dated December 21, 1993: We are writing in response to the correspondence received by this office today, regarding your client's vehicle. Mercedes-Benz of North America is concerned in this matter and as a result, your concerns have been assigned to Mr. Eric Moore, Field Service Manager, a member of our staff for handling. You will, if not already, be contacted by him in the near future. Thank you for bringing this matter to our attention. On or about December 29, 1993, Portuondo sent Petitioner a copy of the manufacturer's December 21, 1993, letter, along with the following cover letter: Enclosed herein please find a letter recently received [with respect to the above-referenced] subject matter. I will let you know if there is any progress. Petitioner waited until August 12, 1994, to file with the Department his Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. He did not file a request sooner because, from April of 1993, the manufacturer and Dealership had repeatedly made representations to him, upon which he relied, that they would either make the necessary repairs to the subject vehicle or otherwise resolve the matter to his satisfaction so that there would be no need for him to resort to arbitration or litigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner's request for arbitration is not time-barred. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of March, 1995. STUART M. LERNER 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, 1995.
The Issue The issue is whether Respondent is guilty of employing an unlicensed person to perform motor vehicle repossessions, in violation of Section 493.6118(1)(n), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds a Class "E" Recovery Agent license, Number E00-00107, effective October 29, 1997, and expiring on October 29, 1999. Respondent holds a Class "C" Private Investigator license, Number C00-010139, effective June 30, 1997, and expiring on June 30, 1999. Respondent holds a Class "ZR" Organizational Officer Position, Number ZR98-00005. Respondent owns TWI, Incorporated (TWI). TWI engages in the business of repossessing motor vehicles. Respondent also owns Florida State Towing Company and Florida State Transporting Company, which respectively engage in the businesses of towing motor vehicles and transporting motor vehicles. These three businesses operate out of the same business location. In 1996, TWI hired Ross Cardwell as a recovery agent intern. Mr. Cardwell applied for a recovery agent's license, but Respondent denied the application. Mr. Cardwell resigned from TWI and engaged in the repossession business in another state. Mr. Cardwell returned to Florida, and Florida State Towing Company rehired him on April 4, 1997. Respondent and Mr. Cardwell agreed that Mr. Cardwell would reapply for a recovery agent's license. In the meantime, Mr. Cardwell would tow vehicles for Florida State Towing Company. Respondent assigned Mr. Cardwell responsibilities in the field and the office. On several occasions, Mr. Cardwell assisted Respondent in repossessing motor vehicles. The procedure followed by Mr. Cardwell and Respondent was for Respondent to take control of the vehicle. After having done so, Respondent directed Mr. Cardwell to tow the vehicle to the company's lot. While Mr. Cardwell was towing the vehicle back to the lot, Respondent would locate other vehicles for repossession. Petitioner has produced evidence of company log entries that would suggest that Mr. Cardwell handled repossessions. However, these logs and anecdotal evidence in the form of testimony of two former employees is insufficient evidence to establish that Mr. Cardwell performed acts that would require a recovery agent's license. There is no direct evidence of such unlawful acts by Mr. Cardwell, and Respondent's description of their method of doing business is entirely plausible. Petitioner has failed to prove by clear and convincing evidence that Mr. Cardwell performed acts that required a recovery agent's license.
Recommendation It is RECOMMENDED that the Department of State enter a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 March, 1999. COPIES FURNISHED: Michele Guy Assistant General Counsel Department of State Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250 Gordon R. Duncan Duncan & Tardif, P.A. Post Office Box 249 Fort Myers, Florida 33902 Honorable Katherine Harris Secretary of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the demeanor of the witnesses, the following relevant facts are found: At all times pertinent to this proceeding, respondent T.A.S. Auto Sales held independent motor vehicle license #6VI-2652, with a licensed place of business at 117 1/2 Central Avenue in Brandon, Florida. The owner of T.A.S. Auto Sales is Donald Hunt. On May 1, 1985, the Division of Motor Vehicles issued license number 5VI-003620A to T.A.S. Auto Sales for a supplemental location at 312 East Brandon Boulevard in Brandon, Florida. The expiration date on this license was April 30, 1986. Donald Hunt leased the property at 312 East Brand on Boulevard and operated a retail car sales business there until approximately mid-June of 1985. He then decided to sell the business to Clarence W. Jenkins, and entered into an Assignment of Lease on July 1, 1985. According to Mr. Hunt, it was his intent to allow Mr. Jenkins to operate under the supplemental license of T.A.S. Auto Sales while Mr. Jenkins, doing business as Brandon Auto Brokers, obtained his own Florida Dealers License. However, according to Mr. Hunt, said arrangement was to terminate no later than July 28, 1985. A letter setting forth this agreement was received into evidence as respondent's Exhibit 4. From July 1, 1985, through July 28, 1985, Donald Hunt did supervise all title work performed through Brandon Auto Brokers and/or Mr. Jenkins. During July and early August, 1985, Brandon Auto Brokers secured a County occupational license, a Department of Revenue Certificate of Registration to collect sales and use taxes, a reassignment of telephone numbers, an insurance binder, a surety bond and membership in the Florida Independent Automobile Dealers Association. Signage indicating either Brandon Auto Brokers or "under new management" was also placed on the premises, but the date upon which such signage was erected was not established. Lois Jarvis, an inspector with the Division of Motor Vehicles, testified that she spoke on the telephone with Mr. Hunt and Mr. Jenkins on August 9, 1985, and thereafter mailed to Mr. Jenkins an application form for a dealer's license. It was Inspector Jarvis' understanding that Mr. Hunt was allowing Jenkins to operate under Mr. Hunt's supplemental license until such time as Jenkins obtained his own license. On September 4, 1985, she visited the supplemental lot to check on Mr. Jenkins' incomplete application. Her next visit with either Mr. Hunt or Mr. Jenkins occurred on September 23, 1985. At that time, while at Mr. Hunt's lot on Central Avenue, Mr. Hunt informed her that he had nothing more to do with the supplemental lot on Brand on Boulevard, and gave Ms. Jarvis his license for that location. Inspector Jarvis then went over to the supplemental lot and issued a Notice of Violation to Mr. Jenkins/Brandon Auto Brokers for offering, displaying for sale and selling motor vehicles without a license. On September 24, 1985, Ms. Jarvis requested the Department to cancel dealer license 5VI-3620A on the ground that "dealer closed lot and surrendered license." Mrs. Jarvis testified that she did not visit either the supplemental lot or the main lot in July or August of 1985. Her work records for July and August do not reflect a visit to either location. Mr. Hunt, and several witnesses testifying in respondent's behalf, testified that he told Inspector Jarvis in early July that he would have nothing more to do with the supplemental lot beyond July 28, 1985. It was their testimony that Mrs. Jarvis' response was that "there was no way Mr. Jenkins could be issued a license by July 28th, to which Mr. Hunt responded, "that's not my problem." Mr. Hunt admits that he did not specifically request Mrs. Jarvis to cancel his license for the supplemental lot as of July 28th, and that he did not deliver that license to Mrs. Jarvis until September 23, 1985. Based upon the demeanor and possible motives of the witnesses, as well as the documentary evidence received into evidence, it is concluded that Inspector Jarvis did not visit either the supplemental lot or the main lot for which T.A.S. held licenses in June, July or August of 1985. It is further found that Inspector Jarvis did not become aware that Mr. Hunt intended to cease all relationships with the supplemental lot until he delivered the license for those premises to her on September 23, 1985. By statute, an independent motor vehicle license period is from May 1 to April 30 of the following year. Licenses expire annually, "unless revoked or suspended prior to that date." Section 320.27(4), Florida Statutes. The Department has no rule, regulation, policy or established procedure for a licensee to surrender or cancel a license prior to the expiration date. On July 30, 1985, Bruce Reich purchased a 1980 Chevrolet Camero from the Jenkins at the supplemental lot. His checks were made payable to Brandon Auto Brokers. He did not think he was buying a car from T.A.S. or from Don Hunt. On or about September 30, 1985, Mr. Reich filed a Complaint Affidavit against Brandon Auto Brokers regarding this transaction. As of the date of the hearing, Mr. Reich had still not received title to the vehicle he purchased. On August 26, 1985, William S. Ryder purchased a 1981 Van from the Jenkins at the supplemental lot. On or about October 2, 1985, Mr. Ryder filed a Complaint Affidavit against T.A.S. Auto Sales on the ground that he had not received a clear title or plates for this vehicle. He had previously attempted to locate Mr. Jenkins, but was unable to find him.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent be DISMISSED. Respectfully submitted and entered this 31st day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR 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 31st day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0471 The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 8. Rejected; the evidence demonstrates that respondent intended that its responsibilities with regard to the supplemental lot would terminate on July 28, 1985. Respondent 1 - 3. Rejected in part as improper findings of fact. 4 - 9A. Rejected; not supported by competent, substantial evidence. 9H. Accepted, except that the evidence demonstrates that the Ryder complaint named T.A.S. Auto Sales as the dealer. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Michael N. Kavouklis, Esquire 419 West Platt Street Tampa, Florida 33606 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Findings Of Fact Respondent is and at all material times has been certified as a auxiliary law enforcement officer by Petitioner in the State of Florida, holding license number 01-7570. During 1986, Respondent was working part-time as an unpaid auxiliary trooper for the Florida Highway Patrol. Shortly before 11:00 p.m. on the evening of May 31, 1986, Respondent was riding in a marked Florida Highway Patrol car with Trooper Clark Dickenson of the Florida Highway Patrol. At the same time, Sergeant Donald Smith, who was driving another Florida Highway Patrol car, was monitoring two vehicles proceeding south on U.S. Highway 441 toward Kissimmee. Due to the excessive speed of the vehicles, Sergeant Smith decided to stop the vehicles, but needed assistance to stop both of them. He therefore radioed Trooper Dickenson, described the lead car, and directed him to stop and detain the driver while Sergeant Smith stopped and ticketed the driver of the other car. Pursuant to Sergeant Smith's instructions, Trooper Dickenson stopped the lead vehicle, which was a three-month old 1986 Chevrolet Camaro being driven by Cynthia Cramer. Trooper Dickenson approached Ms. Cramer's automobile and informed her that she would have to await the arrival of another highway patrolman in order to receive a citation. Pursuant to Trooper Dickenson's request, Ms. Cramer gave him her driver's license. Within five or ten minutes, Sergeant Smith arrived at the scene. Trooper Dickenson handed the driver's license to Sergeant Smith and shortly thereafter left the scene with Respondent, who had not left Trooper Dickenson's car during this time. Sergeant Smith issued a citation to Ms. Cramer for speeding. Ms. Cramer received no other citations, notices, or warnings of any nature from Sergeant Smith, Trooper Dickenson, or Respondent, either at the scene or at anytime thereafter. During this time period, unknown to Respondent and the Florida Highway Patrol, Trooper Dickenson had been falsifying faulty equipment notices in order to mislead his superiors into believing that his level of activity as a highway patrolman was higher than in fact it was. From April to July, 1986, he filed over 100 notices to drivers for whom Trooper Dickenson supplied fictitious driver's licenses. However, the notices, which were ordinarily issued to the driver at the scene, were never in fact issued. The notices were mere warnings rather than citations and did not result in points being assessed against the driver's license. At the time, the follow- up on a faulty equipment notices was nearly nonexistent, so that the falsifications were difficult to detect and resulted in no adverse consequences to the drivers, who naturally "ignored" the notices that were never issued. Shortly after the above-described incident involving Ms. Cramer, Trooper Dickenson ordered Respondent to complete the upper portion of a Notice of Illegal or Faulty Equipment for the Cramer vehicle and show that it had one headlight out. Respondent completed a Notice of Illegal or Faulty Equipment for the Cramer vehicle. The notice was inaccurate as to month, day, and year of birth for Ms. Cramer. The notice was inaccurate as to two of the three digits and two of the three letters of the license tag. The notice was inaccurate by one year as to the year of the car. Most significantly, the notice was inaccurate as to the condition of the headlights: both were operating that evening. However, unlike all of the other cases involving falsified faulty equipment notices issued by Trooper Dickenson, the driver's license number for Ms. Cramer was correct. After Respondent had filled out the upper portion of the above- described notice, Trooper Dickenson signed the form and filed a copy with the Florida Highway Patrol with the intent to mislead his superiors to his advantage. He never issued the driver's copy to Ms. Cramer. There is no proof that Respondent knew that the notice was inaccurate as to the condition of the headlights. There is no proof that Respondent himself saw the headlights operating or that Trooper Dickenson confessed to Respondent that the notice was fraudulent as to the condition of the headlights. There is no proof that Respondent was aware of any impropriety in the failure of Trooper Dickenson to complete and issue the notice while on the scene or any intent on the part of Trooper Dickenson not to issue the notice in due course after its preparation by Respondent. However, Respondent knew that he was completing the form with inaccurate information. The inaccuracies, apart from the condition of the headlights, were not due to errors on Respondent's part. Respondent knew that he lacked the requested information and intentionally supplied information that he knew to be incorrect.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 20th day of February, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 20th day of February, 1989 1-10. Adopted. 11. Rejected as irrelevant. 12. Rejected as subordinate. 13-20. Adopted. 21. Adopted in substance. 22-23. Adopted. 24-25. Rejected as subordinate. 26. Adopted as to Trooper Dickenson. Rejected as to Respondent as APPENDIX unsupported by the greater weight of the evidence. COPIES FURNISHED: Terry D. Shutts 1210 Marygon Street Kissimmee, FL 32743 Joseph S. White Assistant General Counsel Florida Department of Law Enforcement PO Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Florida Department of Law Enforcement -Post Office Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esq. General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Alphonso J. Clark is the holder of Florida teacher's certificate number 129341, valid since July 1, 1971, certifying him in the areas of administrative supervision, science, physical education, and guidance. For a period of approximately sixteen years, he was employed with the School Board of Pinellas County. During the 1982-83 school year, respondent held the position of Dean of Students at Clearwater High School. He was dismissed from employment by the Pinellas County School Board on June 8, 1983. No evidentiary hearing has held prior to that dismissal, and respondent was not questioned by any member of the School Board regarding the acts giving rise to his dismissal. Some time in 1978, respondent met Marc Hayes for the first time at a hotel lounge in Clearwater Beach. Mr. Hayes told respondent that he was from Michigan and knew executives with automobile manufacturers who received vehicles from their manufacturer and were willing to sell such vehicles at a substantially reduced price. Respondent indicated that he would be interested in purchasing a luxury vehicle at a reduced price. At this time, no formal order was given by the respondent for a specific automobile, nor was any money exchanged. Respondent did advise Mr. Hayes of his place of employment and where he could be located in the event that Mr. Haves was able to find a vehicle that respondent might desire to purchase. Some time in 1979, Mr. Hayes brought a 1978 silver "anniversary edition" Corvette to Clearwater High School for respondent's inspection to determine if he would be interested in buying it. The odometer on the Corvette indicated that it had been driven approximately 10,000 miles. There was a slight tear in the driver's seat, the interior had been stained and had a bad odor, the right rear fender had been damaged and repaired, the mirror on the driver's side was cracked and the exterior paint had a rough finish. Nevertheless, respondent agreed to purchase the Corvette for $7,000 because he felt he would be receiving a good bargain. Mr. Hayes then went to respondent's home and received a down payment of $1,000 from the respondent. Respondent did not sign any contract or loan agreement reflecting the transaction, nor did he receive any title or other document from Mr. Hayes reflecting his ownership or interest in the vehicle. Respondent told Mr. Hayes that he would pay the remainder of the purchase price upon receipt of the title. Respondent made two or three other payments to Mr. Hayes. When he made his final payment, Mr. Hayes gave him a Michigan titled to the Corvette. The title had respondent's name on it with a Michigan address. After asking Mr. Haves why the former owner's name did not appear on the title, it was respondent's understanding that the executive selling the car might get in trouble with his company. The respondent had never before purchased a car in a private transaction and without third- party financing. After purchasing the Corvette, respondent obtained a Florida registration, secured a Pinellas County license tag, and had the car insured and inspected. He drove the vehicle on a daily basis over the course of the next three years and its appearance was never altered. On two occasions over this approximate three-year period, respondent was stooped by law enforcement officers and the Corvette's registration, license, and vehicle inspection number were checked. On both occasions, respondent was given no indication that anything was wrong with the car. One of these occasions was apparently due to the fact that respondent's ex-wife had reported to the police that the Corvette had been stolen. Respondent explained that this occurred after a domestic dispute with his then wife. When she said "With your luck, the car is stolen," he retorted "if my luck is as good as marrying you, it probably is stolen." Thereafter, she reported the car as stolen. During the early months of 1983, detectives with the Clearwater Police Department were involved in the investigation of an interstate stolen car ring. A Mr. Raymond Huntley was first arrested for arranging for the sale of stolen vehicles. Apparently, Mr. Huntley obtained the cars from Wade Clark, who is the brother of respondent Alphonso Clark. It was determined that the stolen cars were being delivered to Florida from Michigan through Marc Hayes. A check of police records revealed that Marc Hayes had been arrested in Pinellas County on December 31, 1982, for a traffic law violation while driving a 1982 Cadillac which was registered in the respondent's name. This was the first time in the ongoing auto theft ring investigation that respondent's name had been mentioned. After checking with the National Auto Theft Bureau, it was determined that the vehicle identification number on the Cadillac was invalid, and it was later determined that the Cadillac was a stolen vehicle. The Cadillac itself was never located by the Clearwater Police Department. While the Cadillac registration was not received into evidence in this proceeding, respondent admitted that it was registered in his name. He explained that Marc Hayes desired to have a car available to him in Florida, and requested respondent to keep the Cadillac at his home, use it when he wanted, but have it available for the use of Mr. Hayes or his friends when they were in Florida. Hayes suggested that the Cadillac be registered in respondent's name since respondent would also be driving it. Respondent had no knowledge as to the whereabouts of the Cadillac, but assumed that Mr. Hayes had taken it, as he had done on other occasions. After discovering that the stolen Cadillac was registered in the respondent's name, and after arresting respondent's bother, the respondent himself became a suspect in the auto theft ring investigation. The detectives learned that respondent owned a Corvette. After going to the parking lot of Clearwater High School and looking through the windshield on the driver's side, the detectives were able to obtain the vehicle identification number for the Corvette. Further investigation revealed a Florida registration in the respondent's name with the same identification number, but it was discovered that the number was an invalid identification number for the Corvette. The Corvette was thereafter placed under surveillance. After locating the car in an open, but wooded area across the street from the respondent's residence, the detectives ordered that the Corvette be seized, and it was towed away for the purpose of inspecting the confidential vehicle identification number. An examination of the back of the confidential identification number plate revealed that the numbers had been altered. After checking the true numbers, the detectives ascertained that the Corvette had been reported stolen in Michigan in 1978. When the respondent discovered that the Corvette was missing from the lot across from his home, he called the Indian Rocks Beach Police to inquire about it. Be also called the owner of the property upon which the car was parked. Respondent first learned that the Corvette had been impounded when three law enforcement officers came to talk to him at Clearwater High School on or about May 3, 1983. While two of the officers testified that respondent acknowledged during that May 3rd conversation that he knew the Corvette was "hot," respondent denies making such a statement. Respondent was arrested on May 3, 1983, and was charged with auto grand theft. During the criminal proceedings, the original owner of the Corvette testified that he bought the car in February of 1978. Its sticker price at that time was $12,124, but he was able to purchase it on a company discount for approximately $10,000. The Corvette was stolen from the Ford Motor Company parking lot in Dearborn, Michigan in November of 1978. After respondent's arrest, a newspaper article appeared in the St. Petersburg Times on May 5, 1983, reporting that respondent was "one of three deans responsible for disciplining students at Clearwater High," and had been arrested and charged with auto grand theft. The same article reported that respondent's brother and others had also been arrested and that one of the cars recovered was the Corvette respondent drives to school. Respondent's arrest also received other coverage by the news media. After the St. Petersburg Times article appeared, the principal of Clearwater High School, as well as one of the other dean of students, received many inquiries from parents, students and other teachers regarding respondent's arrest. While there was some student support for the respondent, most of the comments from parents were negative. They voiced concern over the propriety of one who is arrested for auto theft having the authority to discipline their children. Prior to the publicity surrounding respondent's arrest, the principal considered respondent an effective employee. By letter dated May 4, 1983, respondent was notified that the Superintendent of Schools was suspending him from his duties as of the close of the school day on May 4, 1983, as an emergency measure. By letter dated May 9, 1983, respondent was notified that the Superintendent would recommend to the School Board on May 25, 1983, that respondent be dismissed and his contract cancelled on charges of immorality and misconduct in office. Respondent was advised that he was entitled to a hearing, but that the request for a hearing had to be received by May 23, 1983. By Final Order dated June 8, 1983, the School Board noted that respondent's request for a public hearing was not received until May 25, 1983, found that respondent was guilty of immorality and misconduct in office and dismissed him from employment effective May 26, 1983. At a judicial hearing held on January 19, 1984, Circuit Judge Maynard F. Swanson of the Circuit Court for Pinellas County granted a motion to suppress the contents of the Corvette, including the confidential vehicle identification number. Judge Swanson found that at the time the vehicle was seized, the law enforcement officers did not have probable or reasonable cause to believe that the Corvette was stolen. The criminal case against the respondent was dismissed by Order dated October 15, 1984, and filed on October 31, 1984.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against respondent on May 18, 1984, be DISMISSED. Respectfully submitted and entered this 29th day of January, 1985, in Tallahassee, Florida. DIANE D. TREMOR 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 29th day of January, 1985. COPIES FURNISHED: Donald Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Fla. 32301 L. Haldane Taylor 331 E. Union Street Jacksonville, Fla. 32202 Ronnie G. Crider 410 S. Lincoln Avenue Clearwater, Fla. 33516 Pamela L. Cooper 911 E. Park Avenue Tallahassee, Fla. 32202
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.
