The Issue Are the allegations of the Administrative Complaint true, and if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Department is the agency of the State of Florida responsible for the enforcement of the Florida Motor Vehicle Repair Act. Respondent 98 Trans Service Inc. was, at pertinent times, a corporation doing business as AAL Transmission World. Respondent Michael Crisante, Sr. is the president and owner of 98 Trans Service, Inc. d/b/a AAL Transmission World. Respondent 98 Trans Service, Inc. d/b/a AAL Transmission World (AAL) is located at 5526 North Highway 98, Lakeland, Florida. AAL is registered with the Department as a motor vehicle repair shop that does transmission repair and has been assigned registration number MV-17033 by the Department. AAL advertised to the public a $14.95 coupon special for a multi-point transmission tune-up which included new fluid, clean pan, clean screen, replace gasket, adjust band and linkage, road test, check for leaks and check u-joints. Several witnesses testified that the reason they brought their vehicles to AAL was because they had seen the advertisement for the $14.95 special. On or about May 4, 1993, Lee Baker took his 1982 American Eagle Sport station wagon 4 wheel drive to AAL to be serviced using the $14.95 coupon. Baker was not experiencing any problem with the transmission but was concerned about a particular noise he was hearing while driving the vehicle. Baker left the vehicle with an AAL employee with instructions to service the vehicle using the $14.95 coupon and that if there was any problem to call him. Late the next day someone from AAL called Baker to advise him that there was a problem with the transmission. The next morning Baker went to AAL and was shown some debris (steel shavings, etc.) that supposedly came from his transmission and was told that the transmission needed an overhaul. Baker was not given a repair estimate or disclosure statement form at this time. Baker did not give AAL a written waiver of his right to receive a written estimate. 10 Baker went home, and after discussing the matter with his wife went back to AAL to pick up the vehicle, but was told by AAL that the vehicle was unsafe to drive. After some discussion, AAL told Baker it would cost $300 to overhaul the transmission, and that the transmission would be in first class condition after overhaul. With this assurance from AAL, Baker authorized AAL to overhaul the transmission. Again, Baker was not given a written repair estimate or disclosure statement by AAL. Two days later AAL called Baker and advised him that the torque converter needed an overhaul. After some discussion with AAL about why the torque converter needed an overhaul, Baker, still somewhat confused, told AAL that he would not authorize the torque converter overhaul but to call him when the car was ready. Again, Baker was not given a written repair estimate or disclosure statement by AAL and had no idea what AAL was going to charge for the repair. When Baker went to pick up his vehicle he was presented with a bill by AAL for $697.48 which indicated, along with some minor repairs, that AAL had install a reconditioned automatic transmission, a rebuilt torque converter and replaced the right front axle. The bill, which Baker paid, came to $697.48. Other than this summary repair bill, Baker did not receive a repair estimate or disclosure statement in writing from AAL before AAL proceeded to repair his vehicle. Likewise, Baker has never received from AAL an itemized description of all labor, parts, and merchandise supplied and the costs for such items. On or about September 6, 1994, Peggy Graham took her 1986 Buick to AAL to have the transmission serviced with the $14.95 coupon. Graham had the Buick serviced on a regular basis and the oil changed every 3,000 miles. Prior to taking the Buick to AAL on September 6, 1994 to have the transmission serviced, Graham was not having any trouble with the car or the car's transmission. In fact, Graham had just recently driven the car 4,000 miles while on vacation. John Waterman, Service Manager for AAL, had the transmission pan pulled outside the presence of Graham. Thereafter, Graham was shown some alleged metal shavings that supposedly was in the pan of the transmission when it was pulled, and was told that the car was unsafe to drive. Graham signed a repair estimate and disclosure statement form to the effect that AAL was to give her a repair estimate in writing if the repair costs exceeded $50. Although Graham's final bill on repairing the transmission in the Buick was $901, she was never given a repair estimate even though the amount exceeded the $50 she had authorized. Likewise, Graham was never given an itemized description of all labor, parts, and merchandise supplied and the costs for such items. On February 18, 1994, Evelyn Smith took her 1987 Oldsmobile to AAL to have the fluid changed using the $14.95 coupon. Smith purchased the car in August, 1993, and had experienced no problems with the car or the transmission prior to taking the car to AAL. In fact, the information filled in by Smith on the disclosure statement (Department's exhibit no. 11) on February 18, 1994, indicates that she brought the car in for service and was experiencing no problems with the transmission. Also, the car had been serviced about a month earlier, and there was no indication of any problem with the transmission at that time. Dean Curtis, Service Manager for AAL, test drove the Smith vehicle and advised Smith that there was a problem when shifting from first gear to second gear. Smith had never experienced this problem before with the car's transmission. Curtis then had the transmission pan pulled outside the presence of Smith. Thereafter, Smith was shown some alleged metal shavings that supposedly was in the transmission pan at the time it was pulled, and was also told that the transmission fluid had a burnt smell. Based on her conversation with Curtis, Smith was under the impression that AAL could dismantle the transmission, determine the problem and repair the transmission for $262. With this understanding, Smith signed a repair estimate and disclosure statement form (Department's exhibit no. 11) indicating that she did not require a written estimate so long as the repair costs did not exceed $262, and left the car at AAL for the transmission to be repaired. Although this repair estimate and disclosure statement form (Department's exhibit no. 11) has what might be considered an estimate of labor and parts totalling $1,282.11 on the back, this information was not on the form at the time Smith signed on February 18, 1994. Later, AAL called Smith to advise her that it would cost $1,209.54 to repair the transmission and that if she did not want it repaired that there would be a charge of $262 for the diagnostic work and for reassembling the transmission. Although Smith had understood that the $262 would be the cost of repairs, she authorized AAL to repair the transmission at a cost of $1,209.54, because otherwise she would have wasted the $262. Subsequently, AAL repaired Smith's transmission at a cost of $1,264.69, which Smith paid. On October 13, 1993, Robert Weiss took his 1990 Jeep Cherokee Laredo to AAL to be serviced using the $14.95 coupon. Weiss's only reason for going to AAL was to have the Jeep's transmission serviced using the coupon. Prior to taking his Jeep to AAL for service, Weiss regularly serviced his Jeep and changed the engine oil every six thousand miles. Weiss had never experienced any problem with the Jeep's transmission prior to taking the Jeep to AAL and had never had to have the Jeep's transmission repaired. Weiss left the Jeep at AAL for the service set out in the coupon while he went shopping. Upon returning from shopping, Weiss was informed by an AAL employee that the Jeep's transmission pan contained metal shavings and that the fluid had a burnt smell. Weiss was shown the alleged metal shavings that supposedly were in the Jeep's transmission pan when the pan was removed. Weiss was not present when the transmission pan was removed from the Jeep's transmission. Weiss was informed by this AAL employee that the presence of metal shavings and the burnt smell of the fluid were signs of serious problems, and if not fixed could result in the transmission falling apart. Based upon these representations, Weiss agreed to have the transmission repaired. Weiss was advised verbally as to the cost of the transmission repair but did not sign a waiver of the requirement for a written repair estimate. Weiss did not receive a written repair estimate and did not sign any thing authorizing the repair of the transmission. Weiss did not receive an itemized description of all labor, parts, and merchandise supplied and the costs of such items from AAL. The only document received by Weiss from AAL was a copy of a repair estimate and disclosure form with Weiss' signature on the disclosure statement with no date and with none of choices checked. Weiss' signature does not appear on the authorization for inspection service section or the authorization for repair section. However, Weiss did sign the completion certification section. The final bill in the amount of $1,482.32 was paid by Weiss. On May 25, 1994, Mary Curry took her 1991 Buick Regal to AAL to have the fluid changed using the $14.95 coupon. Curry purchased the Buick in September, 1993. Curry had experienced no problems (no leaking, no slipping or no locking up) with the transmission prior to taking the car to AAL on May 25, 1994. The Buick's odometer showed a reading of approximately 35,000 miles. An employee of AAL took Curry's car back in the service area for service. Subsequently, Curry was shown a transmission pan with metal shavings and a bolt which supposedly was in the Buick's transmission pan when it was removed. Curry was not present when the transmission pan was removed by AAL. Curry was advised by AAL that it would cost $262 to remove, dismantle, inspect parts, reassemble and install transmission. Curry agreed to this and gave AAL written authorization to perform such work. Curry understood that she would be required to pay the $262 even if there was no repair required. After AAL dismantled the transmission, Curry was advised verbally that it would cost approximately $1,000 to repair the transmission. Curry did not waive the requirement for a written estimate. However, AAL did not give Curry a written estimate of the cost of the repairs. The costs ($1,398.95) set out on the back of Department's exhibit no. 15 were not there at the time Curry signed the front of that document authorizing AAL to dismantle, inspect and reassemble the transmission. Curry did not sign the authorization for repairs section on the front of the repair estimate and disclosure form. The final bill for the repair of the transmission was $1,336.45, which Curry paid. Sometime in June, 1995, Dennis Leonis took his 1968 Chevrolet Monte Carlo to AAL to have the transmission fluid changed. Leonis was the original owner of the car which had 200,000 miles on the odometer, but the car was in excellent working condition, with no transmission problems. AAL did not test drive the vehicle, but while the car was at AAL, and out of the presence of Leonis, the transmission pan was pulled. Subsequently, the manager advised Leonis that the pan contained debris (metal shavings) when it was pulled and that the transmission was falling apart. The manager quoted a price of $2,000 to repair the transmission. Dennis was told by the AAL employee that removed the pan that there was nothing wrong with the transmission. Leonis had the transmission pan, with the old fluid, placed back on the transmission and drove to another transmission repair shop to have the fluid changed. Leonis changed the transmission fluid every other week for a total of four times. Leonis drove the car for approximately 30,000 to 40,000 miles without any problems with the transmission. Heidi and Alvie Steelman had a 1983 Buick Regal that had developed a leak in the transmission. On November 23, 1994, the Steelmans took their Buick to AAL for the express purpose of having AAL determine the source of the leak. AAL found the source of the leak to be the O-ring where the dipstick enters the transmission but suggested that the Steelmans allow AAL to change the filter and fluid while in the shop at a cost of $14.00. The Steelmans agreed to have this service but did not agree to have AAL disassemble the transmission. Subsequently, and out of the presence of the Steelmans, AAL pulled the transmission pan on the Steelmans' Buick and showed them some alleged shavings that supposedly was in the transmission pan when it was pulled. AAL advised the Steelmans that the Buick needed a rebuilt transmission. The Steelmans advised AAL that they could not afford a rebuilt transmission and to reassemble the old transmission so they could take the car home. At this point, AAL advised the Steelmans that it would cost $185.00 to reassemble and if they didn't pay that the car would be moved to the AAL lot with the disassembled transmission. AAL advised the Steelmans that AAL could secure a loan for them to pay for the work. Alvie Steelman, assuming he was signing a request for a loan, signed a repair estimate authorization and disclosure statement that at the time of signing did not contain an estimate of the costs of repairs or costs of parts. After AAL's assurance to the Steelmans that a loan would be forthcoming, the Steelmans gave AAL permission to repair the transmission. AAL was unable to secure a loan for the Steelmans. The final bill was $583 which the Steelmans paid with funds borrowed from friends and family. AAL provided the Steelmans with a repair estimate and disclosure form at the time they paid for the repairs. However, this form did not itemize the costs for labor and parts. AAL did not provide the Steelmans with a itemized description of all labor, parts, and merchandise supplied and the costs of such items. AAL did not provide the Steelmans with any paper work until they had paid for the repairs. On June 9, 1995, Clyde Garretson drove his 1983 Chevrolet Truck to AAL. The truck could not be driven in drive gear but could be driven in second gear. Garretson left the truck with AAL with verbal instructions to check out the problem. AAL did not advise Garretson at this time as to the cost for diagnosing the problem and did not present Garretson with a repair estimate and disclosure form to be signed showing the estimated cost of diagnostic work. 41 Later on that day Garretson was advised by AAL, through his wife, that it would cost approximately $950 to fix the transmission. At first, Garretson decided not to have AAL fix the transmission, but when informed by AAL, through his wife, that there would be charge of $295 for diagnostic work, Garretson agreed, through his wife, to have the transmission repaired. Again, AAL did not prepare and present to Garretson a repair estimate for his approval. Furthermore, Garretson did not waive the require for a written repair estimate. The only paper work received by Garretson was the final bill for $1,046.22 which was not an itemized description of all labor, parts, and merchandise supplied and the costs for such items. On June 23, 1995, Daryl Gargus had his 1988 Dodge Ram D50 taken to AAL because the transmission was locked in gear. Gargus did not at any time receive an invoice with an itemized description of all labor, parts, and merchandise supplied and the costs for such items. Furthermore, it was later discovered by Gargus that a new clutch assembly and clutch disc that had been installed in the truck by Gargus had been removed and replaced by used parts. Gargus was told by AAL that the clutch had not been replaced. Also, a practically new direct drive starter that Gargus had observed prior to taking the truck to AAL had been removed and replaced by a used starter. Gargus was not told by AAL that the starter had been replaced. Edgar Pickett, Jr. and his son, Edgar Pickett, III, took the son's 1984 Fleetwood Cadillac to AAL for service and because it was slipping. The Picketts left the car with AAL. Edgar Pickett Jr. testified that he signed a repair estimate with a disclosure form on July 3, 1995, which required AAL to provide an estimate of repairs should the estimate of repairs exceeded $50. However, it appears that the repair estimate and disclosure form was signed by Edgar Pickett, Jr. on July 5, 1995, the date the car was picked up by Edgar Pickett, Jr. after being repaired by AAL. Furthermore, it appears that Edgar Pickett, III signed a repair estimate and disclosure form on June 30, 1995, authorizing diagnostic work and repair work on the transmission. Also, this form (Respondent's exhibit 1) shows an itemized statement of parts, labor and the costs of such items necessary for the repair of the transmission. Troy Spruill took his Dodge Dynasty to AAL for a $14.95 service. AAL test drove Spruill's car and told Spruill that the transmission was slipping from first to second, and that it might have to be rebuilt. Spruill left the car at AAL and went home. Later, AAL called Spruill and gave him a verbal estimate over the telephone of $1,122.83 to repair the transmission. The estimate included a CV joint. Subsequently, Spruill gave AAL authorization to make the repairs covered in the estimate which included the transmission and the CV joint. In fact, on July 19, 1995 Spruill signed a estimate of repairs and disclosure form authorizing the repair so long as the cost did not exceed $1,190.20 which was the cost of the repairs plus tax. Spruill paid AAL $1,190.20 and received a copy of the repair estimate and disclosure form. This form does not show an itemized description of all labor, parts and merchandise supplied and the costs of such items. However, Spruill was verbally furnished this information over the telephone prior to authorizing the repair on July 19, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Department of Agriculture and Consumer Services enter a final order revoking the registration (MV-17033) issued to Respondents' motor vehicle repair shop. RECOMMENDED this 24th day of October, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-66847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1996. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level - 10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level - 10 Tallahassee, Florida 32399-0810 Lawrence J. Davis, Esquire Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 John L. Woodard, III, Esquire 320 North Magnolia Avenue, Suite A-6 Orlando, Florida 32801
The Issue The issue for consideration in this case is whether Petitioner should be licensed as an independent motor vehicle dealer in Florida.
Findings Of Fact By stipulation of fact, the parties agreed: Petitioner applied for a motor vehicle dealer's license for a dealership to be operated at 2401 Central Avenue in St. Petersburg, Florida. The application was denied by the Department because it appears the applicant has no experience in the motor vehicle business and, in fact, applied for the license to allow an individual by the name of Lloyd Blocker to operate and have continued involvement in the motor vehicle business. Petitioner was aware at the time of his application that Mr. Blocker had been denied a motor vehicle license in Florida in February 1994 and had been convicted of a felony in Alaska involving the unlawful rolling back of odometers in motor vehicles. In addition, Mr. Rinier was aware that the Department of Motor Vehicles would not allow Mr. Blocker to hold a license to deal in motor vehicles in Florida. Mr. Rinier and Mr. Blocker have an ongoing business dealing with the sale of motor vehicles. Mr. Rinier knows and knew at all times pertinent hereto that Mr. Blocker could not operate such a business on his own. The Department of Motor Vehicles contends that Mr. Blocker cannot operate or be involved in any facet of the motor vehicle business in any capacity. If Mr. Rinier were to provide written assurances that Mr. Blocker would not be involved in any way with a business operated under a license if issued, it would issue a license, assuming Mr. Rinier were otherwise qualified for licensure. Mr. Rinier is unwilling to provide that assurance in writing. However, Petitioner contends his sole desire is to make money from the operation of a dealership. If the license were issued, ownership of the business would be and remain in the Petitioner's name. He had already paid lease costs and all other costs relating to the business, and he will not operate it without Mr. Blocker's participation in some form. The present relationship with Mr. Blocker involves sale of the buildings where the dealership would operate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Highway Safety and Motor Vehicles enter a Final Order denying a motor vehicle dealer license to Petitioner, Harvey G. Rinier. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John L. Waller, Esquire John L. Waller, P.A. 467 Second Avenue, North _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997. St. Petersburg, Florida 33701 Michael J. Alderman, Esquire Gabrielle L. A. Taylor, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building Room B-439 Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue The issue is whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent operated a motor vehicle repair shop in Melbourne known as A-New-Carb-O- Tronics. The shop has been registered with the Department since 2004 under registration number MV54037. In December 2005, Janet Shea started having problems with the back hatch of her 2001 Pontiac Aztek. The problems were attributed to the body control module (BCM), which is an electronic device that controls the vehicle's lights, door locks, and window motors. Ms. Shea consulted Respondent about the problems she was having with the Aztek because he had previously done repair work on another one of her vehicles. Respondent told Ms. Shea that he could make the necessary repairs to the BCM, and he picked up the vehicle from Ms. Shea's home to perform the repairs. On January 27, 2006, Ms. Shea paid Respondent $900 for the repairs that he claimed to have done to the BCM. Ms. Shea continued to have the same problems with the back hatch after the vehicle was returned to her by Respondent, so she took it back to Respondent for repairs. On February 14, 2006, Ms. Shea paid Respondent an additional $1,200 for repairs that he claimed to have done to the BCM. Ms. Shea continued to have the same problems with the back hatch after the vehicle was returned to her the second time, so she again took it back to Respondent for repairs. On February 18, 2006, while the vehicle was in Respondent's possession, it was involved in an accident that damaged the fuel pump. Respondent charged Ms. Shea $390 to repair the fuel pump. Ms. Shea continued to have the same problems with the back hatch of the vehicle after Respondent returned it to her the third time at the end of April or beginning of May 2006. At that point, Ms. Shea decided to sell the Aztek, but Respondent convinced her to let him take the car again for another evaluation. Respondent told Ms. Shea that the BCM that he installed must have been defective and that he would replace it under his warranty and that it would cost her nothing. On August 2, 2006, after Respondent failed to return the vehicle and refused to return her calls, Ms. Shea filed a stolen vehicle report with the Melbourne Police Department. During the course of the police investigation, Respondent produced two written invoices for repairs that he purportedly performed with Ms. Shea's authority, including charges for repairs to a 1992 Chrysler LeBaron owned by Ms. Shea's friend, Ron Shultz. Ms. Shea was never given these invoices by Respondent. The first invoice, dated July 13, 2006, was for $1,657. It included $343 of charges for repairs to Mr. Shultz's LeBaron. The remainder of the invoice was for repairs that Respondent claimed to have performed on Ms. Shea's Aztek, including replacement of the BCM. The second invoice, also dated July 13, 2006, detailed the $343 of repairs that Respondent purportedly made to Mr. Shultz's LeBaron. Ms. Shea did not authorize the repairs to Mr. Shultz's vehicle, nor did she authorize the charges for that vehicle to be included on her invoice. The handwritten notations on the invoices, which appear to show that Ms. Shea consented to the repairs, were not written by Ms. Shea, but rather were written by Respondent without Ms. Shea's authority. Ms. Shea did not pay these invoices. Respondent placed a mechanic's lien on Ms. Shea's vehicle for the $1,657 of repairs that he claimed to have performed, but for which Ms. Shea failed to pay. On December 4, 2006, the Circuit Court for Brevard County entered an Order finding the lien to be "wrongful" and declaring it "null and void." On or about December 11, 2006, Ms. Shea recovered her vehicle from Respondent with the assistance of the Melbourne Police Department. Respondent had abandoned the vehicle behind the warehouses near his shop. The vehicle was not in a drivable condition when it was recovered. Respondent had removed belts and other parts that he claimed to have installed on the vehicle. 23. On December 11, 2006, Ms. Shea's vehicle was towed to Lane Pontiac-Buick-GMC (Lane) for an estimate of the repairs needed to make it drivable. The estimate prepared by Lane identified almost $4,400 of necessary repairs, including a new BCM. The estimated charges related to the BCM were approximately $400--$252.46 for parts and $148.42 for labor--which is far less than the $2,100 that Ms. Shea paid Respondent for the repair work that he claimed to have done on the BCM. Ms. Shea filed a complaint with the Department in August 2006 concerning her dealings with Respondent. The complaint was investigated by Garrett Craig Moon, who has approximately eight years of experience investigating motor vehicle repair shops for the Department. On September 21, 2006, Mr. Moon conducted an onsite visit to Respondent's shop. The visit was conducted after 8:00 p.m., because that was during the time Respondent regularly conducted his motor vehicle repair business. During the onsite visit, Mr. Moon requested that Respondent provide the documents supporting any repairs that he made to Ms. Shea's vehicle, including documents showing her authorization for the repairs and receipts for the parts used to complete the repairs. Respondent told Mr. Moon that he did not have the documents at the shop on that date, but he agreed to produce them by fax. Respondent subsequently sent a letter to Mr. Moon by fax, but he did not produce any of the requested records. He told Mr. Moon on December 4, 2006, that he refused to produce any records. Respondent had not produced the motor vehicle repair records for inspection by the Department as requested by Mr. Moon as of the date of the final hearing. On seven separate occasions, Ms. Shea paid Respondent for motor vehicle repairs where the cost of the repair work exceeded $100. Those payments included the $900 and $1,200 payments for repairs to the BCM and the $390 payment for the fuel pump, as well as payments for other repairs. The only invoices that Respondent prepared for the work that he allegedly performed for Ms. Shea were those described above dated July 13, 2006. Respondent did not provide written estimates to Ms. Shea for any of the repair work that he allegedly performed, and at no time did Ms. Shea waive the preparation of a written estimate. The invoices described above did not include odometer readings for Ms. Shea's Aztek or Mr. Shultz's LeBaron, a statement indicating whether anything was guaranteed in connection with the repair work, or the registration number for Respondent's motor vehicle repair shop. Respondent did not appear at the final hearing despite having been given due notice of the date, time, and location of the hearing. Respondent operated a motor vehicle repair shop under registration number MV10590 from 1993 to 2001. Respondent has no disciplinary history with the Department. The Department's records identify only one other consumer complaint against Respondent. Mr. Moon's report states that the other complaint was in 1996 and that it was mediated by a Department investigator.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order that: Finds Respondent guilty of violating Sections 559.905(1), 559.911(1), (5), and (6), 559.915(2), and 559.920(2) and (3), Florida Statutes, as alleged in the Administrative Complaint; Imposes an administrative fine of $12,000; and Revokes Respondent's motor vehicle repair shop registration. DONE AND ENTERED this 19th day of May, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of May, 2008.
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony and documentary evidence presented at the final hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following Findings of Fact are made: Mr. Arthur is the owner of Mustang Speed and Restoration (MS&R), a motor vehicle repair shop. MS&R’s physical address is 12545 44th Street North, Suite D, Clearwater, Florida. 4 Exhibit 9 is a composite exhibit of seven black and white photocopied photographs. Three of the photographs were identified as sand in the back seat of the Jeep; two photographs were of the Jeep parked; one photograph identified a pair of “pink” panties; and one photograph contained two “ZAFUL FOREVER YOUNG” tags. Only the photographs of the parked Jeep and the tags were clear. Mr. Arthur filed a motor vehicle repair registration application to renew MS&R’s license in March 2019. The application contained MS&R’s registration number as MV87835. Additionally, the application contained the following “Application Certification:” I certify that this applicant is aware of and complies with all of the requirements of ss. 559.901-559.9221, F.S., including the repair estimate and disclosure statement required to be given to customers, and I am empowered to execute this application on behalf of the above named [sic] entity or individual. Mr. Arthur’s name was printed below this statement along with his signature (which Mr. Arthur acknowledged during his testimony), his title as “owner,” his phone number, and the date: March 10, 2019. At all times relevant to this case, MS&R held a valid motor vehicle repair shop license. Sometime in 2019, Victor Oddo bought a 2002 Jeep Liberty (Jeep) from M and K Auto. Mr. Oddo secured his vehicle license plate, numbered FL- NBMD06, on the Jeep. Shortly after the purchase, the Jeep was not running smoothly. Mr. Oddo contacted M and K Auto, explained the problem, and he was directed to Respondent. Testimony at hearing did not adequately address the extent of the problem, other than the check engine light was coming on. During another appointment, Mr. Oddo paid Respondent $100 for a valve gasket repair. When shown a copy of the MS&R invoice for the valve gasket repair, Mr. Arthur confirmed it was an MS&R invoice but, testified he had “never seen that invoice, no. I don’t know anything about a valve gasket repair.” In January 2020, the Jeep’s check engine light kept coming on. Mr. Oddo brought the Jeep to Respondent. Mr. Arthur sent Mr. Oddo to a different repair shop, Carl and Sons Repair Shop (C&S). Based on information provided, Mr. Oddo believed the repair would cost $1,000 if done by C&S. On Wednesday, January 15, 2020, Mr. Oddo returned his Jeep to MS&R after Mr. Arthur stated he could do the repair for $380. The Jeep remained in Respondent’s possession until February 6, 2020, a period of 22 days. Mr. Oddo communicated with Mr. Arthur via telephone and text messages. Over the course of the 22 days the Jeep was at MS&R, Mr. Oddo sought information about the status of the Jeep’s repairs and when it would be returned to him. Respondent did not provide Mr. Oddo a written estimate for any work to be completed on the Jeep. At no time did Mr. Oddo waive the preparation of a written estimate. Mr. Arthur repeatedly claimed that the repair would be paid for by M and K Auto, as “the repairs were not done for the - - Mr. Oddo, they were done for the lot.” Mr. Oddo did not authorize Respondent or any of its employees to use his Jeep for personal use. Between January 15, 2020, and February 6, 2020, Mr. Oddo never took physical possession of his Jeep. On Thursday, January 23, 2020, at approximately 1:10 p.m., Mr. Oddo took two photographs of his Jeep parked in front of a Speedway store. The Jeep’s license plate confirmed it was Mr. Oddo’s vehicle. (Pet. Ex.9, pp 31 & 32.) This Speedway store is a block or more away from MS&R. On February 6, 2020, Mr. Oddo picked up the Jeep from MS&R. Respondent did not provide Mr. Oddo an invoice or billing statement for any work that was completed on the Jeep. After picking up the Jeep on February 6, 2020, Mr. Oddo received a parking ticket (Ticket One) in the mail. Ticket One was issued by the City of Tampa for a parking infraction at Ben T. Davis beach.5 The parking 5 A round-trip trek from MS&R’s location to Ben T. Davis beach could not be more than 40 miles. infraction occurred on Saturday, January 18, 2020, at approximately 1:00 a.m., while the Jeep was in Respondent’s possession. The Jeep’s license number on Ticket One confirmed it was Mr. Oddo’s vehicle. Mr. Oddo communicated with Mr. Arthur about Ticket One, and believed Mr. Arthur would pay the $46.00 fine. Later, Mr. Oddo received another parking ticket (Ticket Two) in the mail. Ticket Two was issued by the City of Clearwater for an expired parking meter at a Clearwater beach.6 The parking ticket was issued on January 18, 2020, at 5:11 p.m., while the Jeep was in Respondent’s possession. The Jeep’s license number on Ticket Two confirmed it was Mr. Oddo’s vehicle. Mr. Oddo did not communicate with Mr. Arthur about Ticket Two as by that time, Mr. Oddo had filed a complaint with Petitioner. Petitioner’s Exhibit 9, pages 27 through 29, purports to show sand on the back seat of Mr. Oddo’s Jeep. While it is logical to assume that a vehicle may have sand in it after a trip (or two) to the beach, or for that matter while in Florida as a whole, the black and white photographs are not clear or concise, but are unnecessary. That the Jeep was at each beach is established by the two tickets. After receiving the second ticket, Mr. Oddo checked his Florida Sunpass transponder7 account and discovered two charges while the Jeep was at MS&R for repair. On Thursday, January 23, 2020, at approximately 11 a.m., Mr. Oddo’s transponder account was charged $1.07 for his Jeep traveling southbound on the Bob Graham Sunshine Skyway bridge (Skyway). Later, at 12:25 p.m., Mr. Oddo’s transponder account was again charged $1.07 for the Jeep returning northbound on the Skyway. Mr. Arthur testified that Mr. Oddo’s Jeep was taken for a round-trip test drive to Sarasota, Florida, on January 23, 2020. The round-trip test drive 6 A round-trip trek from MS&R’s location to a Clearwater beach could not be more than 40 miles. 7 Mr. Oddo referred to this as his “Sunshine Skyway pass.” was approximately 82 miles in distance. Mr. Arthur attached a scanner to the Jeep to determine “what the repair needed to be done.” The test drive was also to pick up “a check for a different repair for a car dealer.” Respondent described this test drive using the phrase it “killed two birds with one stone.” Approximately 45 minutes after the Jeep returned from the Sarasota test drive, the Jeep was photographed at the Speedway store front. Mr. Arthur claimed the Jeep was on empty and had to be filled with gas. As provided in paragraph 11 above, Petitioner’s Exhibit 9, pages 31 and 32, are pictures of the Jeep parked in front of the Speedway store, not at a gas pump. Prior to reclaiming his car, Mr. Oddo was led to believe from Mr. Arthur that the Jeep’s timing chain and the check engine light had been repaired. However, that was not the case. Although the timing chain may have been repaired or replaced, the check engine light stayed on. When Mr. Oddo reclaimed his Jeep on February 6, 2020, he claimed there were “approximately a thousand miles added to my odometer.” He failed to substantiate this claim with evidence of the odometer reading on the Jeep when he dropped it at MS&R, compared to the odometer reading when he reclaimed the Jeep. Further, Mr. Oddo confused the issue when he testified: My trip odometer only had 16 miles on it, and I always reset my trip odometer when I fill up my gas tank. My gas tank was empty with 16 miles, so I - - I don’t understand why the trip odometer has to be reset for a test drive at all. Mr. Arthur admitted he never filled out or provided an estimate or invoice for the repair work to Mr. Oddo’s Jeep. Mr. Arthur testified instead that he was under the impression the repair work would be paid for by the car dealer from whom Mr. Oddo bought the Jeep. Mr. Arthur testified: We have an open contract, we are - - no shop under any of the motor vehicle repair under Mr. Williamson,[8] or anybody else, requires the car dealer to come out here and sign the invoice on every job. * * * And no shop that does car dealer wholesale work, auto work, auction work, has the customer - - the car dealer come down out of his office and sign a repair order; it’s a blanket contract, verbal contract. We repair them, they pay their bills, and everybody’s happy. * * * Just in rebuttal, there’s not one car dealership, one repair shop in the world that gets the car dealer or the auction to sign an invoice on every single job. It’s not possible. They’re not going to come down out of their car lot to come down here and sign every - - it’s a blanket contract, verbal contract valid under the State of Florida. Petitioner did not present any disciplinary history regarding Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order that: Finds Respondent guilty of violating section 559.920(3), (12), (13), and (17), as alleged in the AC; Imposes an administrative fine of $4,000; and Directs Respondent to cease using consumers’ vehicles for unauthorized business. DONE AND ENTERED this 25th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2021. Robert J. Arthur Robert J. Arthur, d/b/a Mustang Speed & Restoration 12545 44th Street North, Suite D Clearwater, Florida 33762 Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Genevieve Hall, Esquire Department of Agriculture and Consumer Services 407 Calhoun Street Tallahassee, Florida 32399 Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Stuart M. Lerner, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's Notice Of Voluntary Dismissal, 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 December 3, 2010 4:44 PM Division of Administrative Hearings DONE AND ORDERED this ,,,11L day of December, 2010, in Tallahassee, Leon County, Florida. r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Divist Motor Vehicles .,,,, -- u -'" this day of December, 2010. N . DNlerl5cenMAdmlnlstralor 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 comt 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: Dean Bunch, Esquire Nelson, Mullins, Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 A. Edward Quinton III, Esquire Adams, Quinton & Paretti, P. A. Brickell Bayview Center 80 Southwest 8th Street, Suite 2150 Miami, Florida 33130 Stuart M. Lerner Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue The issue for determination at formal hearing was whether Rule 5J- 12.001(2), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact Theron C. Phinney is the sole owner and operator of Mobile Auto Repair Shop, located in Lake Park, Palm Beach County, Florida. He is engaged in the repairing of motor vehicles and has been in the auto repair business for over 35 years. Mr. Phinney's auto repair business is mobile. All of his equipment and tools for repairing vehicles are located in his truck. Mr. Phinney repairs vehicles wherever they are located, i.e., he goes to where the vehicles are located. No repairs are performed at Mr. Phinney's residence. Mr. Phinney has no employees. Mr. Phinney has been issued an occupational license by Palm Beach County at a cost of $25.00. The license identifies his residence as the location for his business. Even though Mr. Phinney does not perform any vehicle repairs at his residence, the County required him to provide his residential address as the location of his business. The County renews his license yearly with the residential address. 1/ Repairs by mobile motor vehicle repair shops are performed wherever the vehicle needing repair is located. Equipment and tools used to perform the repairs are located in the vehicle owned by the mobile motor vehicle repair shop. The Department of Agriculture and Consumer Services (Department) is charged with administering the Florida Motor Vehicle Repair Act, Sections 559.901-559.9221, Florida Statutes. The Act requires motor vehicle repair shops to register with the Department and pay a fee and provides certain exemptions. Section 559.904, Florida Statutes. Section 559.904(9), Florida Statutes, provides: (9) No annual registration application or fee is required for an individual with no employees and no established place of business. Section 559.903(8), Florida Statutes, defines "place of business" and provides: (8) "Place of business" means a physical place where the business of motor vehicle repair is conducted. The Department's Rule 5J-12.001(2), Florida Administrative Code, provides: (2) "Established place of business" means that physical location noted on the occupational license issued to the motor vehicle repair shop pursuant to Chapter 205, Florida Statutes. If the county or municipality has adopted no local occupational license requirement pursuant to Chapter 205, Florida Statutes, the term means that physical location where motor vehicle repairs are performed, or records, equipment, or tools used for the conduct of the business of motor vehicle repair are housed or stored. The term includes any vehicle constituting a mobile repair shop. The Rule was adopted on January 18, 1995. Rule 5J-12.001(2) implements Section 559.904(9). The Rule also implements Section 559.903(5) and (7), Florida Statutes, which define "minor repair service" and "motor vehicle repair shop," respectively. There is no dispute that mobile motor vehicle repair shops are included in the definition of motor vehicle repair shops. The Department developed the challenged Rule over a period of several months. Numerous public meetings were conducted, particularly with the motor vehicle repair industry, throughout the State of Florida. From the public meetings conducted by the Department, it was evident, among other things, that there was no clear understanding of the meaning of the term "established place of business" in Section 559.904(9). Consequently, the Department was convinced that clarification of the term was needed. The Motor Vehicle Advisory Council (MVAC) reviewed and advised the Department on the challenged Rule and gave the Rule its (MVAC) approval. The MVAC is a statutorily created advisory council, composed of members from the motor vehicle repair industry. The challenged Rule includes all mobile motor vehicle repair shops within the class of businesses required to be registered with the Department pursuant to Chapter 559, Florida Statutes. The Department contends that this inclusion is necessary because, since the purpose of Chapter 559 is to regulate the auto repair business, the mobile motor vehicle repair shops are conducting the business sought to be regulated in that the mobile repair shops are licensed by county and municipal authorities and are performing significant repairs for compensation. There are approximately 560 mobile motor vehicle repair shops registered with the Department. Standing is not at issue in this proceeding.
The Issue Petitioner seeks to have the title to a specific motor vehicle cancelled and reissued to himself. The title at issue is currently in the name of John W. Klingerman. The central issue before the Hearing Officer is whether the title at issue was "improperly issued" by the Department so as to require cancellation of the certificate of title pursuant to Section 319.25(1), Florida Statutes. It was clear from the nature of the relief sought by the Petitioner that the disposition of this case might adversely affect the substantial interests of John W. Klingerman, the person to whom the disputed certificate of title is presently issued. Accordingly, an order was issued requiring that Mr. Klingerman be notified of the pendency of this case and of his right to file a petition to intervene in this case. Mr. Klingerman was so notified more than two months prior to the final hearing in this case. Mr. Klingerman did not seek to participate in this case. The only witness at the hearing was the Petitioner. Joint Exhibits 1 and 2 were received in evidence by stipulation of the parties. Petitioner's Exhibits 5 and 10 were received in evidence. Petitioner's Exhibit 9 was received with the caveat that it might later be disregarded by the Hearing Officer if, upon further consideration of the issues, the Hearing Officer determined it was not relevant. The Hearing Officer reserved ruling on the admission into evidence of Petitioner's Exhibits 8 and 12. Petitioner's Exhibits 1, 2, 3, 4, 6, 7 and 13 were rejected, but Petitioner was permitted to proffer them for inclusion in the record as rejected exhibits. Petitioner's Exhibit 11 was withdrawn by Petitioner. Respondent's Exhibit 1 was received in evidence. Rulings on Petitioner's Exhibits 8, 9 and 12 Upon consideration of all of the legal issues in this case, as set forth in the Conclusions of Law hereinafter, it is clear that Petitioner's Exhibits 8 and 12 are irrelevant to the disposition of the issues in this case. Accordingly, the objections to those two exhibits are sustained and both exhibits will be treated as rejected exhibits proffered for inclusion in the record. Upon further consideration, it is also clear that Petitioner's Exhibit 9 is irrelevant to the disposition of the issues in this case. Accordingly, even though Exhibit 9 has been received in evidence, no findings of fact have been based on that exhibit.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony presented at the hearing, I make the following findings of fact: During November of 1986, Chuck's Whiskey Creek Service embarked upon the process of enforcing a mechanic's lien on Petitioner's 1963 Ford Stationwagon, vehicle identification number 3T24F155323 (hereinafter referred to as "Petitioner's vehicle.") The owner of Chuck's Whiskey Creek Service arranged for the paperwork regarding the mechanic's lien to be handled by an agent, Title Clearing Service. Title Clearing Service is operated by John Boesch and Carol Boesch. On November 21, 1986, John Boesch mailed a document titled Notice of Claim of Lien And Proposed Sale of Vehicle to Petitioner at two different addresses. The documents were sent via certified mail. Both of the documents were returned to John Boesch because they were not delivered to the Petitioner. The documents mailed on November 21, 1986, contain all of the information itemized at Section 713.585(1)(a) through (i), Florida Statutes. On December 17, 1986, a notice of sale was published in the Fort Myers News-Press, a newspaper circulated in Lee County, Florida. The notice published in the newspaper read, in its entirety, as follows: LEGAL NOTICE OF SALE Chuck's Whiskey Creek Service, 5371 McGreagor Blvd., Fort Myers, Florida 33907 will hold a private sale on the following vehicle to satisfy lien pursuant to Chapter 713:585 of Florida Statue (sic) on January 5, 1987, at 8 a.m. 1963 Ford SW VIN #3T24F155323 Amount of Lien $2,027.95 (813) 549-0631 Dec. 17 No. 5247 Thereafter, on January 5, 1987, a private sale was conducted at which time John W. Klingerman purchased Petitioner's vehicle from Chuck's Whiskey Creek Service for $200.00. On January 13, 1987, John W. Klingerman applied to the Respondent for issuance of a certificate of title in his name, based on his purchase at the January 5, 1987, sale. On January 30, 1987, the Respondent issued a certificate of title to Petitioner's vehicle described above to John W. Klingerman of 1824 Coronado Road, Ft. Myers, Florida 323901-7008. Title Number 43916166 issued by the Respondent now shows John W. Klingerman as the owner of the 1963 Ford stationwagon bearing vehicle identification number 3T24F155323. The issuance of the certificate of title to John W. Klingerman was in reliance upon the application for certificate of title filed by John W. Klingerman and various supporting documents. The supporting documents included a copy of the certificate of compliance and the report of sale certified by the clerk of the court. Other supporting documents certified by the clerk of the court included copies of the Affidavit of Publication, the Notice Of Claim Of Lien And Proposed Sale of Vehicle, the vehicle repair order, and envelopes reflecting efforts to mail notices to the Petitioner. The Petitioner's vehicle was previously titled in the state of South Carolina.
Recommendation Based upon all of the foregoing, it is recommended that the Department of Highway Safety and Motor Vehicles issue a final order in this case cancelling certificate of title number 43916166 issued to John W. Klingerman and that the Department thereafter notify John W. Klingerman of the cancellation of the certificate as provided in Section 319.25(1), Florida Statutes. DONE and ENTERED this 22nd day of October, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2613 The following are my specific rulings on each of the proposed findings of fact submitted by the parties. The paragraph numbers below correspond to the paragraph numbers of the parties' proposed findings. Rulings on Petitioners Proposed Findings: Paragraphs 1 and 2: Accepted in substance. Paragraph 3: Accepted in substance with exception of vehicle identification number, which is incomplete. Paragraphs 4 and 5: Rejected as constituting argument or conclusions of law, rather than findings of fact. Paragraph 6: First sentence rejected as constituting argument or conclusions of law, rather than findings of fact. Second sentence is rejected as contrary to the greater weight of the evidence. Paragraph 7: First sentence rejected as constituting argument or conclusions of law, rather than findings of fact. Second sentence is accepted in substance, i.e., that publication of the notice was less than 20 days prior to scheduled sale and the newspaper publication contained insufficient information. Paragraph 8: First two sentences are rejected as constituting argument or conclusions of law, rather than findings of fact. Last sentence is rejected as irrelevant and subordinate details. Paragraph 9: First two sentences are rejected as constituting argument or conclusions of law, rather than findings of fact. Last two sentences are rejected as contrary to the greater weight of the evidence. Paragraph 10: Entire paragraph rejected as constituting irrelevant and subordinate details. Paragraph 11: Entire paragraph rejected as primarily constituting argument or conclusions of law rather than findings of fact. To the limited extent this paragraph contains factual matter, it is rejected as irrelevant and subordinate. Rulings on Respondent's Proposed Findings: Paragraph 1: Accepted. Paragraph 2: Accepted with exception of proposed purchase date. Greater weight of the evidence shows purchase date as January 5, 1987. Paragraph 3: Accepted in substance, but with most details omitted as irrelevant or subordinate. Paragraph 4: Rejected as constituting irrelevant and subordinate details. Paragraph 5: Accepted. Paragraphs 6 and 7: Rejected as constituting irrelevant and subordinate details. Paragraph 8: First sentence rejected as not fully consistent with the greater weight of the evidence. Second sentence rejected as argument or conclusions of law, rather than findings of fact. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Department of Highway and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Mr. Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504
