The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Some time after February 19, 1983, and before March 23, 1983, Wayne W. Hickey opened for business as an auto mechanic under the name Auto Tech at 2350 Fernwood Drive in Pensacola, Florida. He was employed by, but had no ownership interest in the auto repair business known as Motor Exchange that occupied the premises before him. After he had opened his own business, he undertook employment for Lloyd Linville, a principal of Motor Exchange, who asked him to repair a car that belonged to David H. Weinstein which Motor Exchange had been unable to repair. Mr. Hickey could not fix the engine knock, either, and was never paid for his work. While the car was in Mr. Hickey's custody, vandals did $700 damage to it. Mr. Hickey refused to repair this damage or pay Mr. Weinstein money to have it done elsewhere. On February of 1983, while still employed by Motor Exchange, Mr. Hickey signed a warranty on behalf of Motor Exchange covering an engine rebuilt for Jose L. Rodriguez. A week later Mr. Rodriguez discovered that the cam and the lifters were bad, and brought this to Mr. Hickey's attention. Mr. Hickey referred Mr. Rodriguez to Motor Exchange at their new location. The last time that Mr. Rodriguez and Mr. Hickey spoke before the hearing in this cause, Mr. Rodriguez told Mr. Hickey that all was well. At hearing for the first time, Mr. Hickey learned that other problems had developed with the engine since. After she got her income tax refund, Anita Diane Frye took her 1974 Chevrolet to Auto Tech on February 28, 1983. She considers the car hers even though it is registered in her boyfriend's name. He signed the work order authorizing respondent to rebuild the engine. Auto Tech worked on the engine and gave a "1 year or 15,000 mile warranty on engine against defective parts & workmanship accessories excluded." Petitioner's Exhibit No. 5. When Mr. Hickey returned the car after working on the engine, he told Ms. Frye, "You better buy a new set of back tires," because it would go so fast, he claimed. In fact, the car smoked from the time they got it back from Mr. Hickey and he was unable to correct the problem when they took it back for lifters to be installed or when they took it back the second time. The third time they took it back they found the shop closed and no indication of how to get in touch with Mr. Hickey. At the time of the hearing, the car had been driven less than 3,000 miles since the engine had been rebuilt, but the engine spat and sputtered and the car could not be driven faster than 20 or 30 miles per hour: "You sit in a cloud of smoke whenever you stop." After James Clyde Odom heard respondent's radio advertisement, he brought his 1974 Dodge truck to Auto Tech on May 3, 1983, to have the engine rebuilt. Mr. Hickey told him he would rebuild the engine "from the ground up" and guarantee his work. As agreed, Mr. Odom returned for the truck on May 7, 1983, paid Mr. Hickey $644.09 and received a written "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Mr. Odom had driven the truck approximately three miles when his wife, who was following in another car, honked her horn. Steam was rising from the engine. They turned around and went back to the garage where Mr. Hickey supplied a bolt that had been left out of the water pump housing. The Odoms set out again and made it all the way to Mrs. Odom's father's house, where they noticed oil leaking. They determined that a quart and a half had been lost. They took the truck back to the Auto Tech shop again and left a note describing the problem. A week later Mr. Odom picked his truck up from Auto Tech a third time and drove it about two and a half miles to a friend's house, where oil leaked from the truck again and formed a puddle in the friend's driveway. This time when Mr. Odom returned, Mr. Hickey said he could not work on it right away, that Mr. Odom would have to bring it back at Mr. Hickey's convenience, and he refused Mr. Odom's proposal that another mechanic he asked to repair the engine with the bill being sent to Mr. Hickey. The compression in the truck's engine ranged from 107 or 114 pounds in one cylinder to 160 pounds in another. Mr. Hickey also undertook to repair the brakes on the Odom truck, and was paid for this job. He did not turn the drums or replace the brake cylinders although he did install new brake shoes. The brakes did not hold after the work was done. On May 27, 1983, Ishmael White took a 1974 Dodge engine to Hickey for rebuilding. The job was to include "rings, mains, rod bearings, timing gear, timing chain, lifters, push rods, oil pumps, all new gaskets, complete valve job and" cam bearings. Petitioner's Exhibit No. 7. On June 1, 1983, Mr. White paid Mr. Hickey $624.75 for this work and he picked the engine up the next day. The head bolt had not been replaced. On June 10, 1983, the engine was reinstalled in Mr. White's pick-up truck. It made the whole truck vibrate. When Mr. White took it to be tuned, the mechanic said he could not tune it because the valves were not closing. When Mr. White reported this to Mr. Hickey, Mr. Hickey said he would not be able to work on the engine until June 15, 1983. On June 15, 1983, Mr. White left the truck with Mr. Hickey and returned to pick it up on June 21, 1983, as they had agreed. The truck was not ready then, so Mr. White inquired again on June 23, 1983. At that time Mr. Hickey told him that the water pump leaked and would cost $70 to replace, but Mr. White refused to buy a water pump from Mr. Hickey since a new one had been installed less than three months before he took the engine to Auto Tech. On July 12, 1983, Mr. Hickey told Mr. White that everything had been fixed except the water pump and that if he towed the truck away without buying another water pump the warranty was "no good." The warranty Mr. Hickey had earlier given Mr. White was a "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Petitioner's Exhibit No. 7. Mr. White took the truck nevertheless. Bolts were loose. A brand new air filter was wet. Four of the eight cylinders had little or no compression and the engine ran so rough the hood shook, but the water pump was not leaking. Mr. White took the truck elsewhere to be repaired at his expense. On April 2, 1983, James Fisher took his Ford pick-up to Mr. Hickey and Auto Tech and asked that a rebuilt 400 cubic inch engine be substituted for the 351 cubic inch engine it had at the time and that its C-4 transmission be replaced with a C-6. The Fishers retrieved their truck on April 14, 1983, and drove it home. The next day they set out on a camping trip. They had driven 20 miles when the engine "blew up." Smoke came back into the cab and billowed out from under the hood. Employees of Mr. Hickey came for the truck. On April 25, 1983, the Fishers left Auto Tech in the Ford truck a second time. The engine ran rough, the transmission "growled," and they spotted a stream of transmission fluid, so they turned around before they had gone a mile and drove the truck back to Auto Tech. On April 29, 1983, Mr. Hickey said everything was fine and the Fishers set out again. The transmission was better, but the engine was worse, and the car broke down near their son's place of business, a block or so from Auto Tech. The truck was taken back to the Auto Tech garage. Again on May 6, 1983, the Fishers set out in the truck and got all the way to Pace, Florida, this time, notwithstanding problems with the transmission. A mechanic in Pace discovered worn valve guides, worn rings and worn bearings; and that only one bolt attached the engine to the frame; and that the drive shaft had been jammed in without being properly fitted. The Fishers were unable to find Mr. Hickey after he closed down his Auto Tech shop. Without objection, the following affidavit was received in evidence at hearing: I Took The Engine To Wayne Hickey at Auto TECH to be Rebuilt. He was To Rebuild The Engine For $395.00 Plus Taxes, I Paind Him by check $414.75 I took The Engine Home and Installed it in The Car.The engine was Smokeing Real bad. I went back to Wayne Hickey with The Car and he informed me That The Engine Should be Ran For up To 500 miles If IT didn't stop smokeing & useing oil To bring it back. The Engine Froze up. I Towed The car back to AUTO TECH. Wayne Hickey said he would Need to Keep The Car for 3-4 days. My daughter called after 7 days and they haden't Touched The car. They Said to Call back ON The 16 July 83. My daughter Called back on The 16 July 83 and could get no anser, I called back on The 19th & the Recording Said The Phone was Temperoley out of order, I came over here to Auto TECH and talked to Wayne Hickey, 7-28-83. He had not done anything to the Engine, I ask him To give me my Money back and I would get The Engine Fixed Myself. He stated For me to Take The car Home, Take the Engin back out and bring the Engine back To him and He would Fix IT, he didn't say anything about Removeing The Engine when He Told me To bring The car back to Him, A Mr. Watha L. Clayton wrote out the foregoing statement on a form furnished by petitioner's office. The form affidavit was notarized July 28, 1983.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 2d day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 2d day of December, 1983. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Wayne Hickey Motor Exchange 5672 Avondale Road Pensacola, Florida 32506 Curtis A. Golden, State Attorney First Judicial Circuit of Florida Post Office Box 12726 190 Governmental Center Pensacola, Florida 32501
The Issue Whether the registration fees for two automobiles leased by Petitioner should be based on the vehicles being classified as "automobiles for private use" as contended by Petitioner or whether the registration should be based on the vehicles being classified as "motor vehicles for hire" as contended by Respondent.
Findings Of Fact Petitioner is in the insurance business. In connection with that business, he leases two motor vehicles from World Omni Leasing Company. Petitioner pays to World Omni Leasing a monthly fee for the use of the two vehicles. Petitioner and his wife uses these two vehicles for business and personal purposes. Petitioner and his wife are the sole operators of these two vehicles. The registration fee for each automobile was based on the automobile being classified as a "for-hire vehicle" as that term is defined by Section 320.01(15)(a), Florida Statutes. Petitioner contends that the registration for each vehicle should be based on each vehicle being classified as a "private use" vehicle as defined by Section 320.01(14), Florida Statutes. The registration fee for each automobile under the "for-hire" classification was higher than the registration fee would have been under the "private use" classification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that adopts the findings of fact and conclusions of law contained herein and which sustains the registration fees that have been charged for the two subject vehicles. DONE AND ENTERED this 6th day of September, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 6th day of September, 1994. COPIES FURNISHED: Mr. David Youner Post Office Box 450580 Sunrise, Florida 33345 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 Tallahassee, Florida 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
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 Whether the application of Petitioner for registration as an electronic repair dealer should be denied.
Findings Of Fact Petitioner Jack Resnick d/b/a Smart Service petitioned for an administrative hearing upon receipt from the Respondent of a Notice of Intent to Deny License or Registration. The hearing was scheduled for November 27, 1978 at 2:00 p.m. in Tallahassee, Florida. Prior to the hearing the parties requested that the Hearing Officer write a Recommended Order upon submission of "Stipulation of Facts and Questions of Law" filed jointly by the parties, copy of which is attached hereto and made a part hereof. The instruments filed in this case reflect that in February, 1978 Petitioner Jack Resnick applied to the Respondent, Division of General Regulation, for an electronic repair dealer registration under the provisions of Chapter 468, Florida Statutes. In April, 1978 the Respondent notified Petitioner of its intent to deny said application for registration for the reason that applicant Jack Resnick intended to employ one Arthur Resnick as a repair work person In the business. Previously, in 1976 Arthur Resnick had been denied a registration certificate as an electronic service dealer by the Respondent, having been determined to be unfit and ineligible to be registered as an electronic repair service dealer. The Recommended Order entered in that cause, which was adopted as Respondent's final order, made the following; findings of fact: Arthur Resnick caused to be advertised in local (Florida)newspaper advertisements which would the public believe Arthur Resnick Television Repair Service was registered with the Bureau of Electronic Repair when, in fact, it was not. Arthur Resnick had been asked to disclose on his application for registration whether he had been convicted of a felony, misdemeanor, or any infraction other than traffic viola- tions to which Arthur Resnick answered "no" when, in fact, Arthur Resnick had been convicted of three counts of theft by deception involving the repair of television sets by the Court of Common Pleas in Montgomery County, Pennsylvania. The Hearing Officer concluded that: The acts and conduct of the Petitioner in operating without a registration; advertising in a leading and deceptive manner; making false statements as an inducement to the public to authorize repair, and his failure to answer truthfully to certain questions on his sworn application for registration is good and sufficient cause for the director of the Department of Business Regulation, Division of General Regulations to deny the Petitioner a registration certificate as an electronic service dealer. The order of the Respondent adopted the Recommended Order noting that it had received no exceptions to the Recommended Order from either party and thereupon denied the application for registration as an electronic service dealer filed by Arthur Resnick. The application of Petitioner Jack Resnick indicates that he is to be the sole proprietor of the business Smart Service. It indicates that Arthur Resnick, who has the same address as the Petitioner, is to do repair work with a possible employee named Jerry Cohen. Respondent gave no other reason for the denial of Petitioner's application except for the indicated employment of Arthur Resnick.
Recommendation Retract the Notice of Intent to Deny License or Registration which was based on the fact that Arthur Resnick was the prospective employee of the Petitioner. Grant Petitioner's application for registration as an electronic repair dealer providing he presently meets the requirements of the Respondent. DONE and ENTERED this 20th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David M. Hudson, Esquire Deputy General Counsel Depariment of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Alexander M. Siegel, Esquire 1303 North State Road 7 Margate, Florida 33062 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF GENERAL REGULATION DEPARTMENT OF BUSINESS REGULATION JACK RESNICK and SMART SERVICE, Petitioner, vs. CASE NO. 78-1687 DEPARTMENT OF BUSINESS REGULATION, DIVISION OF GENERAL REGULATION, Respondent. /
