The Issue The issue is whether Respondent engaged in business activities requiring a motor vehicle dealer license while its license was suspended.
Findings Of Fact Respondent is a motor vehicle dealer that, at all material times, has been located at 5800 Northwest 27th Avenue, Miami. Except for the period of suspension discussed below, at all material times, Respondent has been licensed to operate as a motor vehicle dealer, holding license number VI-1005997. In the course of business, Respondent acquired possession of a 2007 Suzuki motor vehicle, bearing VIN KL5JD66Z97K644005. Respondent acquired title to the Suzuki by a state of Maryland Certificate of Salvage issued by Nationwide Insurance on August 13, 2010. The certificate shows "damage greater than 75% and repairable" and Respondent as the buyer. Following an informal hearing on May 2, 2012, Petitioner issued a final order on June 18, 2012, that, among other penalties, suspended Respondent's motor vehicle dealer license for 90 days, effective July 1, 2012, for issuing more than two temporary tags to the same person for the same vehicle, in violation of section 320.27(9)(b)17, Florida Statutes, and for issuing fraudulent temporary tags, in violation of section 320.131, Florida Statutes. On August 12, 2012, Respondent sold the Suzuki to 4A Body Shop, Inc. On August 2, 2012, Respondent executed the documentation necessary to complete this transaction.
Recommendation It is RECOMMENDED that the Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 31st day of May, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 Herminio Frometa 5800 Northwest 27th Avenue Miami, Florida 33142 Dennis S. Valente, Esquire Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399 Boyd Walden, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-435 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Steve Hurm, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Suzanne Van Wyk, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Parties’ Settlement Stipulation and Motion to Relinquish Jurisdiction, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed June 20, 2013 10:33 AM Division of Administrative Hearings DONE AND ORDERED this ee) day of June, 2013, in Tallahassee, Leon County, Florida. MELawenbaak. Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this ad. day of June, 2013. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jde Copies furnished: Lynette Whitehurst, Esquire Blanchard, Merriam, Adel and Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 lwhitehurst@bmaklaw.com eroreerrre rarer ee seiseG ; ASYS } Michael J. Alderman, Esquire Department of Highway Safety 2900 Apalachee Parkway, MS61 Tallahassee, Florida 32399 Suzanne Van Wyk Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF MOTORIST SERVICES, Petitioner, vs. Case No. 13-0723 TANOS AUTO SALES, INC., Respondent. ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the joint Settlement Stipulation and Motion to Relinquish Jurisdiction, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 21, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 18th day of June, 2013, in Tallahassee, Leon County, Florida. Un Wit SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 Dock A. Blanchard, Esquire Blanchard, Merriam, Adel and Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 Lynette Whitehurst, Esquire Blanchard, Merriam, Adel and Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 mikealderman@flhsmv.gov STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, Case No.: 13-0723 v. TANOS AUTO SALES, INC., Respondent. / SETTLEMENT STIPULATION AND MOTION TO RELINQUISH JURISDICTION Petitioner, Department of Highway Safety and Motor Vehicles, and Respondent, Tanos Auto Sales, Inc., stipulate and agree to a settlement of this matter and move for relinquishment of jurisdiction for the purpose of entering a Final Order of the Department incorporating this Settlement Stipulation in the above-styled matter, as follows: 1. Petitioner agrees to dismiss the Administrative Complaint with prejudice. 2. Respondent agrees to a non-renewal of his motor vehicle dealer license for the period of May 1, 2013 through May 31, 2013. 3. Respondent agrees to pay an administrative fine of one thousand dollars ($1,000.00), within 30 days of the date of the Final Order. 4. If Respondent pays the amount specified in paragraph three above within the specified time, the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay the amount specified in paragraph three above on or before the date provided in the Final Order, on the day following the payment date specified, Respondent’s motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. 5. If after suspension for failure to pay the fine, as provided for in paragraph four, Respondent pays the amount specified in paragraph three above within 30 days following the date of suspension, its motor vehicle dealer license will immediately be reinstated without further penalties or sanctions. However, if Respondent fails to pay the amount due by the 30" day following the date of suspension, on the 31" day following the date of suspension Respondent’s motor vehicle dealer license shall be revoked by the Department without further notice. 6. If the Department suspends or revokes Respondent’s motor vehicle dealer license for non-payment as specified in paragraphs four and five above, said suspension or revocation shall be without recourse to the Respondent and Respondent hereby expressly waives any right to appeal or otherwise contest the suspension and revocation. 7. It is expressly understood that this Settlement Stipulation has no force and effect until the Department enters a Final Order adopting same. 8. Respondent and the Department fully understand that this Settlement Stipulation, and the subsequent Final Order incorporating same, will not in any way preclude additional proceedings by the Department against Respondent for acts or omissions not specifically detailed in the Administrative Complaint filed in this matter. 9. Respondent and the Department expressly waive all further procedural steps and Respondent expressly waives all rights to seek judicial review of or otherwise challenge or contest the validity of this Settlement Stipulation and the Final Order of the Department. 10. Respondent and the Department each waives the right to seek any attorney’s fees or costs from the other party in connection with this administrative proceeding. WHEREFORE, the parties move the Administrative Law Judge for the entry of an order returning jurisdiction of this matter to the Department. de Signed this day of , 2013 Signed this ‘7 day of _~Swt@ __, 2013. Mich’ i Deputy General Counsel Florida Bar No. 0242357 Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida, 32399 Attorney for Petitioner Ismail Osman, President Tanos Auto Sales, Inc. ~ : Signed this \-] day of (ane _, 2013. - am te Lynetté Whitehurst, Esquire Florida Bar No. 092145 Blanchard, Merriam, Adel & Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 Attorney for Respondent oO
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the licensure and licensure status of motor vehicle dealers and enforcing the statutory and regulatory authority related to standards of business practice by such dealers. D.J.M. RV Center, Inc. (Respondent) holds recreational vehicle dealer license no. 5RV-1222 issued by the Petitioner. The Respondent's licensed place of business is located at 3635 Fowler Street, Fort Myers, Florida 33901. The Respondent is engaged in the business of buying, selling and trading recreational vehicles. It operates under the name D.J.M. RV Center, Inc. That name alone is depicted on the only exterior sign on the Respondent's place of business at the above address. For approximately a two-year period, one George Pieropan, with Respondent's permission, occupied an office in the building occupied by Respondent and bought and sold recreational vehicles at that same location as Respondent. Pieropan purported to be operating a separate recreational vehicle consignment dealer business named "Suncoast RV," a proprietorship. There was, however, no sign on the exterior of the Respondent's dealership building advertising Suncoast RV. Both businesses operated from the same location. There was no segregation of the recreational vehicle inventory of Suncoast RV and D.J.M. RV Center, Inc. The vehicles were intermingled on the display lot. George Pieropan was not a licensed motor vehicle dealer. George Pieropan and Suncoast RV had a separate checking account, but recreational vehicles purportedly being offered for sale by Suncoast RV were advertised in the newspaper as being offered for sale by D.J.M. RV Center, Inc., the Respondent. When individuals came to the sales lot to shop for are creational vehicle, they were shown vehicles by employees of both Suncoast RV and the Respondent, regardless of which entity the vehicle was being sold by or consigned to. Keys for the recreational vehicles purportedly being sold by Suncoast RV or Pieropan, were intermingled with the keys for vehicles being sold by the Respondent on a keyboard in the Respondent's office. Mr. Don Meyer, the President of the Respondent corporation, established that the Respondent purchased a 1978 "Honey" recreational vehicle from George Pieropan which George Pieropan had taken in trade from Mr. and Mrs. Leroy Kehrer. The Respondent sold that vehicle to one James Killem. The bill of sale to Killem for the vehicle was signed by George Pieropan on behalf of the Respondent corporation, D.J.M. RV Center, Inc. In approximately October of 1984, Mr. and Mrs. Kehrer had gone to the Respondent's location to shop for a recreational vehicle. While they were at the Respondent's dealership, Mr. and Mrs. Kehrer were shown a Yellowstone recreational vehicle by Howard Turner. Howard Turner was a salesman for the Respondent and also sold vehicles for Suncoast RV (Pieropan). During their initial visit, Salesman Turner advised the Kehrers that they would have to bring in their current recreational vehicle to have its trade-in value appraised. The Kehrers thus brought in their "Honey" recreational vehicle the next day and Mr. Turner discussed a price with them, with D.J.M. RV Center, Inc. ultimately purchasing the 1978 Honey vehicle. After Mr. Turner and the Kehrers agreed upon an appraised value for their Honey vehicle, which was to be a trade-in, they traded it in on a Yellowstone recreational vehicle which Mr. Turner showed them. The Yellowstone vehicle had been placed on consignment with George Pieropan by its owner, Marcus Heck. During this visit Mr. Turner introduced the Kehrers to George Pieropan, referring to him as "one of the owners of the business" or "his boss." The next day, Pieropan called Mr. Kehrer and shortly thereafter came to the Kehrer's home where a sales agreement was executed for purchase of the new Yellowstone recreational vehicle which had been shown them by Howard Turner, the Respondent and Pieropan's sales employee. As a result of the purchase agreement, the Kehrers issued a check and, at Pieropan's behest, made out the check to "Suncoast RV." At this same time, however, Pieropan told them that Suncoast RV was the branch of the Respondent's dealership that handled used recreational vehicles on consignment such as the subject Yellowstone vehicle. In any event, the Kehrer's paid George Pieropan $17,200 in cash and traded in their "Honey" recreational vehicle with an accompanying trade-in allowance of $13,542 to make up the purchase price for the Yellowstone recreational vehicle. Ultimately, D.J.M. RV Center, Inc. sold that Yellowstone vehicle to one James Killem and George Pieropan executed the bill of sale to Killem on behalf of the Respondent corporation, D.J.M. RV Center, Inc., after D.J.M. purportedly purchased that vehicle from Pieropan. The Kehrers have never received a title for the Yellowstone recreational vehicle they purchased through George Pieropan. Marcus Heck, the previous owner of that vehicle was contacted by Don Meyer, co-owner of the Respondent corporation and had been quoted a sales price for the Yellowstone vehicle by Meyer. Mr. Heck received a check for $15,200 from Pieropan, but that check was dishonored for insufficient funds. Sometime thereafter, Mr. Heck received another check for partial payment of the amount due him in the amount of $9,000. That check was drawn on the Respondent's account and signed by Richard E. Tessier, who was the Respondent corporation's sales manager at the time. Thus, although the Yellowstone vehicle was purportedly consigned by Marcus Heck its original owner to George Pieropan, George Pieropan was acting on behalf of the Respondent corporation in selling the vehicle to the Kehrers' with the assistance of Howard Turner, who was clearly the Respondent's salesman, as evidenced in part by the Respondent corporation's attempt to partially honor the check issued on insufficient funds by George Pieropan who had since left the state. Thus, although Pieropan purported to be operating a separate recreational vehicle dealer business named "Suncoast RV," his business and the Respondent's were so intermingled as to constitute one business entity for all practical purposes. This is borne out by testimony of Marcus Heck, who established that on one occasion when Don Meyer (owner of the Respondent) was on an extended vacation, the Respondent's entire business operation was run by Pieropan in his absence. The businesses were not segregated as to office space, office entrances, driveways, or fences and inventories were co-mingled. Marcus Heck had been contacted by Don Meyer, the co-owner of the Respondent corporation, and quoted the sales price for the Yellowstone vehicle which was to be sold to the Kehrers through Suncoast RV. Suncoast RV was described by Pieropan to Heck as being part of D.J.M. RV Center, Inc. Both Suncoast RV Center, Inc. and Pieropan paid office rent to the brother of Don Meyer, one of the co-owners of D.J.M. RV Center, Inc. Finally, it was established by Howard Turner, the salesman for both D.J.M. and Suncoast and Respondent's witness, that both entities used one common telephone line and that he, Turner, sold recreational vehicles for both Pieropan and Suncoast and D.J.M. RV Center and signed sales orders for both.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore RECOMMENDED: That the licensure of D.J.M. RV Center, Inc. be suspended for a period of one year and that Respondent pay to the Department of Highway Safety and Motor Vehicles a fine of $1,000, and it is further RECOMMENDED that the suspension may be abated at such time as the Respondent provides good and sufficient proof to the Department that the seller of the motor home in question has been reimbursed in full for the sale price of the subject recreational vehicle and that, concomitantly, title to the same has been effectively transferred to the purchasers, Mr. and Mrs. Kehrer. DONE and ENTERED this 18th day of October, 1985 in Tallahassee, Florida. _ P. MICHAEL RUFF 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 18th day of October, 1985. APPENDIX Petitioner's Proposed Findings of Fact 1. Accepted. 10. Accepted. 19. Accepted. 2. Accepted. 11. Accepted. 20. Accepted. 3. Accepted. 12. Accepted. 21. Accepted. 4. Accepted. 13. Accepted. 22. Accepted. 5. Accepted. 14. Accepted. 23. Accepted. 6. Accepted. 15. Accepted. 24. Accepted. 7. Accepted. 16. Accepted. 25. Accepted. 8. Accepted. 17. Accepted. 26. Accepted. 9. Accepted. 18. Accepted. 27. Accepted. Respondent's Proposed Findings of Fact Undisputed and accepted. Undisputed and accepted. Undisputed and accepted. This proposed finding is rejected as not being supported by the competent, substantial and credible evidence and testimony of record. This proposed finding is rejected as not comporting with the competent, substantial and credible evidence and testimony of record. This proposed finding is rejected as not supported by competent, substantial, credible evidence and testimony of record. This proposed finding is accepted, but is not dispositive in itself of any issue at bar. This proposed finding is accepted, but it in turn is not dispositive of any issue at bar. This proposed finding is rejected as not being in accord with the competent, substantial, credible evidence and testimony of record in its entirety. This proposed finding of fact is accepted. This proposed finding of fact is accepted. This proposed finding of fact is accepted. 12 COPIES FURNISHED: Michael J. Alderman, Esq. Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Gregory E. White, Esq. PAVESE, SHIELDS, GARNER, HAVERFIELD, DALTON & HARRISON Post Office Drawer 1507 Fort Myers, Florida 33902 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
The Issue Whether Petitioner’s application for a motor vehicle dealer license should be granted or denied.
Findings Of Fact Petitioner, Global Express, LLC. (Global Express), is a limited liability company which has submitted to Respondent an application for a license as a motor vehicle dealer under the fictitious name of Auto Zone Auto Sales (the subject application). Johnny Romero and Rosangela Romero, who are husband and wife, are the members and managers of Global Express. Mr. Romero is also known as Johnny Guillermo Romero Peguero.1 Both Mr. and Mrs. Romero signed the subject application on behalf of Global Express before a notary public on May 4, 2009. The following language is contained above the signature lines: Under penalty of perjury, I do swear or affirm that the information contained in this application is true and correct . . . Part 5 of the application form requires that the “applicant, partner, or corporate officer or director” answer yes or no to certain questions (the Certifications). Each dealership officer is required to answer these questions under penalties of perjury. Relevant to this proceeding, both Mr. and Mrs. Romero answered the following question in the negative: Has this applicant, partner, or corporate officer or director ever had a surety bond cancelled? Relevant to this proceeding, both Mr. and Mrs. Romero answered the following question in the negative: Has this applicant, partner, or corporate officer or director ever been denied or had a dealer license suspended or revoked in Florida or any other jurisdiction? In addition to the foregoing, Mr. and Mrs. Romero answered the following question in the affirmative: Has this applicant, partner, or corporate officer or director ever been a licensed dealer in Florida or any other jurisdiction? Under their affirmative response Mr. and Mrs. Romero inserted information reflecting that they had previously been licensed dealers under the license numbered VI/1018283. Pursuant to application executed by Mr. and Mrs. Romero on January 11, 2007, Respondent issued motor vehicle dealer license numbered VI/1018283 to Pronto Cars Corp. (Pronto). Pronto’s motor vehicle dealer license bond was cancelled by its surety, Nova Casualty Company, by notice dated December 18, 2007. Pronto’s motor vehicle dealer license was suspended by Respondent by Order of Emergency Suspension and Administrative Complaint dated March 20, 2008. That case was assigned the following case number by Respondent: DMV-08-479. The Order suspended Pronto’s motor vehicle dealer license because Pronto’s surety had cancelled its bond. There was a conflict in the evidence as to whether Mr. Romero ever received a copy of the Emergency Final Order and Administrative Complaint in case DMV-08-479. That conflict is resolved by finding that Ms. Pierre-Lys, acting in her capacity as a compliance officer for Respondent, served a copy of the Order of Emergency Suspension and Administrative Complaint on Mr. Romero on April 16, 2008. Mr. Romero, on behalf of Pronto, signed and submitted an election of rights form dated May 5, 2008, which provided, in relevant part, as follows: “I have read the Administrative Complaint filed in this matter [DMV-08-479] and understand my options.” Immediately before Mr. Romero’s signature is a check in a box indicating that Mr. Romero was exercising the following option: “I have not obtained a surety bond and wish to voluntarily relinquish my motor vehicle license. I have completed and am returning the Voluntary Relinquishment of License form within 21 days from the date of my receipt of this administrative complaint.” On May 23, 2008,2 Respondent issued its Final Order in its case number DMV-08-479, thereby canceling Pronto’s motor vehicle dealer’s license. The Final Order directed Pronto to surrender its license and all dealer and temporary tags in its possession. The Final Order also contained the following: It is further ORDERED and ADJUDGED that the Order of Emergency Suspension and Administrative Complaint filed herein is DISMISSED and this case is hereby CLOSED. Mr. Romero called Respondent’s compliance officer, Luz Irizarry, on March 6, 2009, told her that he wanted to obtain a motor vehicle dealer license, and asked whether he would have to go to a school for new dealers. Ms. Irizarry referred the inquiry to Ms. Buck, who determined that Mr. Romero would have to attend the school because Pronto had received consumer complaints, Pronto’s surety had cancelled its bond, and Pronto’s license had been suspended and subsequently revoked. On March 9, 2009, Ms. Irizarry informed Mr. Romero of the reasons he would have to go to dealer school, and specifically discussed with him the fact that Pronto’s operations had been suspended. When he signed the Certifications on May 4, 2009, Mr. Romero had actual knowledge that Pronto’s surety bond had been revoked and that Pronto’s motor vehicle dealer license had been suspended. Mr. Romero’s contends that he was confused about his answers because he thought he had bought the surety bond for its full term and because he thought the Final Order entered by Respondent dismissed the suspension of his license. Those contentions are rejected. It is clear from his answer pertaining to the license that had been issued to Pronto that Mr. Romero understood as a principal of Pronto he would have to disclose the revocation of Pronto’s surety bond and the suspension of Pronto’s motor vehicle dealer license on the subject application. Mr. and Mr. Romero’s Certifications under section 5 of the subject application pertaining to the revocation of a surety bond and the suspension of a motor vehicle dealer license are willful, material misrepresentations of fact. On February 26, 2008, Respondent discovered that Pronto had moved its business location and was doing business at a location that had not been approved by Respondent. On April 1, 2009, Mrs. Romero drove a motor vehicle displaying a “For Sale” sign. The vehicle had a temporary tag on it that had been issued to Pronto. The possession of that temporary tag violated the Final Order entered in Respondent’s case number DMV-08-479, which ordered Pronto to immediately surrender all temporary tags to Respondent. On April 27, 2009, Mrs. Romero displayed, or acquiesced in the display of, another car with a “For Sale” sign on it parked in front of Global Express’s proposed, but unlicensed, location. That car had a temporary tag on it that had been issued to Pronto. The temporary tag was filled out to show the name of another dealer. The possession of that temporary tag violated the Final Order entered in Respondent’s case number DMV-08-479, which ordered Pronto to immediately surrender all temporary tags to Respondent. On April 2, 2009, Mr. Romero had 13 motor vehicles titled in his name. Although he asserts that some of the motor vehicles were bought in conjunction with a taxi service he operated, he admitted that some of these vehicles had been purchased for resale. Mr. Romero acquired a 1966 Ford motor vehicle on May 9, 209, and sold the vehicle on May 21, 2009. Mr. Romero acquired a 1999 Chevrolet motor vehicle on May 18, 2009, and sold the vehicle on May 25, 2009. Mr. Romero acquired another Chevrolet motor vehicle on May 20, 2008, and sold the vehicle on May 31, 2009. Respondent established that during April and May 2009, Mr. Romero engaged in the business of dealing in motor vehicles without a license. On March 30, 2009, Mr. Romero paid Respondent for the registrations of ten motor vehicles with worthless checks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent Department of Highway Safety and Motor Vehicles enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order deny the subject application. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 30th day of November, 2009.
The Issue The issue for determination in this proceeding is whether Proposed Rules 15C-7.004(4)(a), (4)(b), and (7)(d) and Florida Administrative Code Rule 15C- 1.008 each constitute an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties The Department of Highway Safety and Motor Vehicles (the "Department") is the agency responsible for promulgating and administering the rules challenged in this proceeding. The Department administers Chapter 320, Florida Statutes, 2/ which governs the operation of motor vehicle dealers and manufacturers in Florida. General Motors Corporation ("GM") is a corporation incorporated in Delaware and registered to do business in Florida. GM's corporate address and principal place of business is 3044 West Grand Boulevard, Detroit, Michigan 48202. GM is licensed by the Department, pursuant to Section 320.60, Florida Statutes, as a manufacturer of motor vehicles. GM has entered into and will enter into dealer sales and service agreements to authorize motor vehicle dealers to sell GM vehicles at locations in Florida. The Florida Automobile Dealers Association (??FADA??) and the South Florida Auto Truck Dealers Association ("SFATDA") are trade associations composed of both domestic and foreign line-make franchised motor vehicle dealers. FADA is composed of more than 800 franchised motor vehicle dealers licensed in the state. SFATDA is composed of virtually all franchised motor vehicle dealers in Palm Beach, Broward, Dade, and Monroe Counties. The Motor Vehicle Manufacturers Association of the United States, Inc. ("MVMA") is a trade association whose member companies manufacture motor vehicles produced in the United States. MVMA members include Chrysler Corporation, Ford Motor Company, GM, Honda of America MFG., Inc., Navistar International Transportation Corporation, PACCAR Inc., and Volvo North America Corporation. The principal place of business for MVMA is 7430 Second Avenue, Suite 300, Detroit, Michigan 48202. All of the members of MVVA, including Ford Motor Company ("Ford"), are licensed pursuant to Section 320.61, Florida Statutes. The Association of International Automobile Manufacturers, Inc. ("AIAM") is a trade association of manufacturers and manufacturer-authorized importers which import motor vehicles for sale in the United States. AIAM members and associates affected by the challenged rules include: American Honda Motor Company, Inc.; America Suzuki Motor Corporation; BMW of North America, Inc.; Daihatsu America, Inc.; Fiat Auto U.S.A., Inc.; Hyundai Motor America; Isuzu Motors America, Inc.; Jaguar Cars, Inc.; Mazda Motor of America, Inc., Mitsubishi Motor Sales of America, Inc.; Nissan North America, Inc.; Peugeot Motors of America, Inc.; Porsche Cars North America, Inc., Rolls-Royce Motor Cars, Inc.; Rover Group USA, Inc.; Saab Cars, USA, Inc.; Subaru of America, Inc.; Toyota Motor Sales, U.S.A., Inc.; Volkswagen of America, Inc., Volvo North America Corporation; and Yugo America, Inc. The principal place of business for AIAM is 1001 19th Street North, Suite 1002, Arlington, Virginia 22209. Each member of AIAM is either licensed as an importer, pursuant to Section 320.61, Florida Statutes, or maintains a contractual relationship with a distributor which is licensed pursuant to Section 320.61. Toyota Motor Sales, U.S.A., Inc. ("Toyota"), for example, is not licensed in the state as an importer. Toyota, however, maintains a contractual relationship with Southeast Toyota, Inc., which is licensed as a distributor for the purpose of marketing motor vehicles in Florida. Hyundai Motor America ("Hyundai") is an importer of motor vehicles. Hyundai's principal place of business is 10550 Talbert Avenue, Fountain Valley, California 92728. Members of MVMA and AIAM, as well as Ford and Hyundai, have entered into and will continue to enter into dealer sales and service agreements to authorize motor vehicle dealers to sell GM vehicles at locations in Florida. Ed Morse Chevrolet of Seminole, Inc. ("Morse") is an applicant for a license as a franchised motor vehicle dealer. The application of Morse was approved after a hearing pursuant to Section 320.642, Florida Statues. Morse's facility, however, is not yet completed and it would be adversely affected by the enforcement of Proposed Rules 15C-7.004(7)(d) and Rule 15C-1.008. The portions of the proposed and existing rules challenged in this proceeding will affect the substantial interests of the parties to this proceeding. The Challenged Rules Proposed Rule 15C-7.004 was published in the Florida Administrative Weekly, Vol. 17, NO. 16, at page 1721, on April 19, 1991 (the "Proposed Rule"). The particular portions of the Proposed Rule challenged in this proceeding are hereinafter identified by the underlining in the quoted portion of the Proposed Rule. Proposed Rule 15C-7.004(4)(a) provides: Application for Reopening or Successor Dealership, or for Relocation of Existing Dealership. If the license of an existing franchised motor vehicle dealer is revoked for any reason, or surrendered, an application for a license to permit the reopening of the same dealer or a successor dealer within twelve months of the license revocation or surrender shall not be considered the establishment of an additional dealership if one of the conditions set forth in Section 320.642(5) is met by the proposed dealer. (emphasis added) Proposed Rule 15C-7.004(4)(b) provides: Application for Reopening or Successor Dealership, or for Relocation of Existing Dealership. An application for change of address by an existing dealer under this section shall be filed on form HSMV 84712, Application For Change of Location (Address) Of Dealer In Motor Vehicles, Mobile Homes or Recreational Vehicles, which is hereby adopted by reference, provided by the Department. The dealer shall indicate which provision of Section 320.642(5) Florida Statutes, if any, it contends exempts the proposed location from consideration as an additional dealership. (emphasis added) Proposed Rule 15C-7.004(7)(d) provides: (7) Hearing and Post-Hearing Procedures. (d) If the proposed additional or relocated dealership is approved construction on the dealership shall begin within 12 months of the date of the final order. The applicant must complete construction and finalize its preliminary application for license within twenty-four months of the date of the final order. This period may be extended by the Department for good cause. (emphasis added) Florida Administrative Code Rule 15C-1.008 provides: Any person who contemplates the establishment of a motor vehicle business for the purpose of selling new motor vehicles, for which a franchise from the manufacturer, distributor or importer thereof is required, shall, in advance of acquiring building and facilities necessary for such an establishment, notify the Director of the Division of Motor Vehicles of his intention to establish such motor vehicle business. Such notice shall be in the form of a preliminary filing of his application for license and shall be accompanied by a copy of any proposed franchise agreement with, or letter of intent to grant a franchise from, the manufacturer, distributor or importer, showing the make of vehicle or vehicles included in the franchise; location of the proposed business; the name or names of any other dealer or dealers in the surrounding trade areas, community or territory who are presently franchised to sell the same make or makes of motor vehicles. Upon receipt of such notice the Director shall be authorized to proceed with making the determination required by Section 320.642, Florida Statutes, and shall cause a notice to be sent to the presently licensed franchised dealers for the same make or makes of vehicles in the territory or community in which the new dealership proposes to locate, advising such dealers of the provisions of Section 320.642, Florida Statutes, and giving them and all real parties in interest an opportunity to be heard on the matters specified in that Section. Such notice need not be given to any presently licensed notice dealer who has stated in writing that he will not protest the establishment of a new dealership which will deal in the make or makes of vehicles to be included in the proposed franchise in the territory or community in which the new dealership proposes to locate. Any such statements or letters of no protest shall have been issued not more than three months before the date of filing of the preliminary application. The Director may make such further investigation and hold such hearing as he deems necessary to determine the questions specified under Section 320.642. A determination so made by the Director shall be effective as to such license for a period of twelve (12) months from the date of the Director's Order, or date of final judicial determination in the event of an appeal, unless for good cause a different period is set by the Director in his order of determination. (emphasis added) Rulemaking authority for Proposed Rule 15C-7.004 is found in Sections 320.011 and 320.27(3), Florida Statues. The law implemented by the proposed rule is found in Sections 320.27 and 320.60-320.70. Rulemaking authority for Florida Administrative Code Rule 15C-1.008 is found in Sections 320.011, 320.27(3), and 320.69. The law implemented by the existing rule is found in Sections 320.27 and 320.642.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: In late 1990, Robert Sayre filed with Respondent an application for an independent motor vehicle dealer license authorizing him to do business as TNT Auto Sales at 2050 N.W. 36th Street in Miami, Florida. At the time, Sayre leased the location of his proposed business from James Philips. 1/ Sayre no longer holds a leasehold interest in the property. The property is now owned by Teobaldo Cabrera, who is leasing it to Fiory Motors, Inc. Fiory Motors, Inc., has a current license from Respondent to operate as an independent motor vehicle dealer on the property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioner's application for an independent motor vehicle dealer license on the ground that he neither owns nor leases the property identified in the application as "the exact location of [his proposed] place of business." DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11 day of September, 1992. 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 11 day of September, 1992.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal of Request for Hearing based on Respondent’s relinquishment of its motor vehicle dealer license, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed June 9, 2010 8:49 AM Division of Administrative Hearings. DONE AND ORDERED this pi G. of June, 2010, in Tallahassee, Leon County, Florida. RL A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this day of June, 2010. Ce ™ NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: R. Lee Dorough Dorough Calzada & Soto, LLP 419 North Magnolia Avenue Orlando, Florida 32801 Robert Hartman Seminole Scooters, Inc. 6227 Park Boulevard Pinellas Park, Florida 33781 James K. Fisher, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A308 Tallahassee, Florida 32399 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
