The Issue The issue is whether Petitioner's establishment of North Tampa Chrysler Jeep Dodge, Inc. (North Tampa), as a successor motor vehicle dealer for Chrysler, Jeep and Dodge line-makes (vehicles) in Tampa, Florida, is exempt from the notice and protest requirements in Subsection 320.642(3), Florida Statutes (2009),1 pursuant to Subsection 320.642(5)(a).
Findings Of Fact Petitioner manufactures and sells Chrysler, Jeep and Dodge vehicles to authorized Chrysler, Jeep and Dodge dealers. Ulm is a party to Dealer Sales and Service Agreements with Petitioner for Chrysler, Jeep and Dodge vehicles. Ulm sells Chrysler, Jeep and Dodge vehicles at 2966 North Dale Mabry Highway, Tampa, Florida 33607. Ferman is a party to Dealer Sales and Service Agreements with Petitioner for Chrysler, Jeep and Dodge vehicles. Ferman sells Chrysler, Jeep and Dodge vehicles at 24314 State Road 54, Lutz, Florida 33559. It is undisputed that Petitioner has had four dealers in the Tampa metro market for a significant number of years. Petitioner's primary competitors also have had four or more dealers in the Tampa metro market. By appointing North Tampa as a successor dealer to Bob Wilson Dodge Chrysler Jeep (Wilson), Petitioner seeks to maintain the status quo of four Chrysler dealers in the Tampa metro market. In April 2008, Petitioner had four dealers in the Tampa metro market that each sold and serviced Chrysler, Jeep and Dodge vehicles. The four dealers were: Ulm, Ferman, Courtesy Chrysler Jeep Dodge, and Wilson. On April 25, 2008, Wilson filed a Chapter 11 petition in United States Bankruptcy Court in the Middle District of Florida (the Bankruptcy Court). At or about the same time, Wilson closed its doors and ceased selling and servicing Chrysler, Jeep and Dodge vehicles. The filing of Wilson’s bankruptcy petition precipitated an automatic stay under Section 362 of the Bankruptcy Code. The automatic stay prevented Petitioner from terminating Wilson’s franchise and dealer agreements (dealer agreements). But for Wilson’s bankruptcy filing, Petitioner would have sent Wilson a notice of termination when Wilson closed its doors and ceased dealership operations. Wilson’s cessation of business adversely impacted Petitioner. In relevant part, Petitioner lost sales and lacked a necessary fourth dealer to provide service to Chrysler, Jeep and Dodge customers in the Tampa metro market. Petitioner desired to reopen a dealership at or close to the former Wilson location as soon as possible to mitigate or eliminate the economic loss. During the automatic stay, Petitioner was legally precluded from unilaterally appointing a successor dealer to Wilson. Wilson still had valid dealer agreements for the Chrysler, Jeep and Dodge vehicles and, therefore, was still a dealer. During the automatic stay, Wilson attempted to sell its existing dealership assets, including the Chrysler, Jeep and Dodge dealer agreements. Any attempt by Petitioner to appoint a successor dealer or even negotiate with a successor dealer, would have undermined Wilson’s efforts to sell the dealerships and maximize the estate for the benefit of the creditors. A sale of the dealership required the consent of Wilson and Wilson’s largest creditor, Chrysler Financial. Petitioner did everything it could to accelerate a sale. However, Petitioner was not a party to the sale negotiations and had no ability to require or force Wilson to sell the dealership or its assets to any particular party or to do so within any particular time period. A preponderance of the evidence does not support a finding that Petitioner did anything to intentionally, or inadvertently, delay or manipulate the timing of a sale. On July 30, 2008, Petitioner filed a motion with the Bankruptcy Court to lift the automatic stay. The motion also sought the termination of Wilson’s dealer agreements. Petitioner filed the motion in the Bankruptcy Court in an attempt to hasten the sale negotiations. Petitioner also wanted to be able to terminate the dealer agreements as quickly as possible in the event that a sale was not consummated. The Bankruptcy Court did not initially grant Petitioner's motion. The court wanted to allow time for a sale of the dealership to proceed. During 2008 and early 2009, Wilson continued to negotiate with potential buyers for the dealership. On January 8, 2009, Wilson's motor vehicle dealer license expired. It became apparent to Petitioner that a sale of Wilson’s assets would be unlikely. Petitioner again asked the Bankruptcy Court to grant Petitioner's motion to lift the stay. On February 9, 2009, the Bankruptcy Court entered an order granting Petitioner's motion to lift the stay. However, the order did not terminate Wilson’s dealer agreements. On February 16, 2009, within a week of the entry of the order lifting the stay, Petitioner sent Wilson a notice of intent to terminate Wilson’s dealer agreements. Wilson received the notice of termination on February 23, 2009, and the termination became effective on March 10, 2009. A preponderance of evidence does not support a finding that Petitioner attempted to manipulate or delay the timing of the termination of Wilson’s dealer agreements. Petitioner began working on establishing a replacement dealership as soon as Wilson’s dealer agreements were terminated. Establishing a replacement dealership is a lengthy process that primarily involves finding a suitable dealer candidate, finding a suitable location and facility, and making sure that the candidate has the necessary capital to start and maintain the dealership. Petitioner talked to several potential candidates to replace the Wilson dealership, including Jerry Ulm, the principal of one of the complaining dealers in these cases. By letter dated June 24, 2009, Mr. Ulm advised Petitioner that he opposed the opening of a successor dealership for anyone else but wanted the successor dealership for himself should Petitioner decide to proceed. Petitioner determined that Petitioner would not be able to locate the successor dealership at the former Wilson facility. Petitioner considered several potential alternative locations for the successor dealership, including property offered by Ferman. Ferman had a vacant site on Fletcher Avenue in Tampa, Florida, which Ferman leased from a third party unrelated to this proceeding. Ferman offered to sublease the property to Petitioner. In a letter to Petitioner's real estate agent dated July 17, 2009, Ferman stated Ferman's understanding that Petitioner intended to use the property to establish a Chrysler, Jeep and Dodge dealership. Petitioner ultimately decided to locate the dealership at 10909 North Florida Avenue in Tampa, Florida. It is undisputed that this location is less than two miles from the former Wilson location. Before establishing the successor dealership, however, Petitioner wrote a letter to the Department on February 5, 2010 (the letter). The letter requested the Department to confirm that the establishment of the successor dealership would be exempt under Subsection 320.642(5)(a)1. from the notice and protest requirements in Subsection 320.642(3). The letter explained that Wilson had filed bankruptcy and ceased operations and that the bankruptcy had prevented Petitioner from terminating Wilson and appointing a successor dealership. The letter also provided the relevant dates of the bankruptcy, the lifting of the stay, and the termination of Wilson dealer agreements and advised the Department of Petitioner's intent to locate the successor dealership within two miles of Wilson’s former location. The letter asked the Department to confirm that the establishment of a successor dealership would be exempt if it was established within one year of March 10, 2009, when Petitioner terminated the Wilson dealer agreements. By separate e-mails dated February 9 and 12, 2010, the Department twice confirmed that it had consulted with counsel and determined that the establishment of a successor dealership to Wilson in the manner outlined by Petitioner would be exempt. Petitioner relied on this confirmation by the Department before proceeding with the appointment of a successor dealership. On February 24, 2010, Petitioner sent a second letter to the Department, stating Petitioner's intention to appoint North Tampa as the replacement and successor dealer for Wilson (the second letter). In the second letter, Petitioner again asserted its understanding that the establishment of North Tampa was exempt from the relevant statutory requirements for notice and protest. On February 24, 2010, Petitioner also submitted to the Department an application for a motor vehicle dealer license for North Tampa. On March 3, 2010, the Department issued a license to North Tampa for the Chrysler, Jeep and Dodge vehicles at 10909 North Florida Avenue in Tampa, Florida. On March 7, 2010, North Tampa opened for business. North Tampa has operated successfully and continuously and employs approximately 30 individuals at the site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that the establishment of North Tampa as a successor motor vehicle dealer is exempt from the notice and protest requirements in Subsection 320.642(3) pursuant to Subsection 320.642(5)(a). DONE AND ENTERED this 11th day of October, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 11th day of October, 2010.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, certified by Petitioner as a law enforcement officer. Until his retirement in January 2008, Respondent served in excess of 20 years as a sworn police officer in the Tampa Police Department (TPD). At the time of his retirement, he was a corporal. At all times material to the instant case, including January 4, 2007, in addition to working full-time as a TPD police officer, Respondent owned an automotive parts and service business (Adkins Enterprises) and the seven-acre property at 4709 East Hillsborough Avenue in Tampa (including the improvements thereon) where the business was located. Until April 2005, when its Florida Department of Highway Safety and Motor Vehicles (HSMV)-issued motor vehicle dealer's license expired, Adkins Enterprises also sold used vehicles at this location. The business had approximately 25 employees. Respondent left the day-to-day operations of the business to his managerial employees. He would stop by when he was off-duty to check on how things were going and to help out, particularly with the paperwork. At a meeting held in 2004 (2004 Meeting), TPD Captain Robert Lovering introduced Respondent to three brothers-- Roynauth "Sham" Sahdeo (Sham), Seewchand "Blacks" Sahdeo (Blacks), and Deonauth "Prim" Sahdeo (Prim)--all of whom worked at a business on 15th Street in Tampa (S & S Auto) which did automotive repairs and paint and body work, as well as provided towing services.2 Respondent understood Sham to be the "main brother," under whom the other two brothers worked. Sham, in fact, at that time, did own the business (which, unlike Adkins Enterprises, was not a Florida-licensed motor vehicle dealer). Blacks and Prim did not then have any ownership interest in S & S Auto. It was verbally agreed, at the 2004 Meeting, that Adkins Enterprises and S & S Auto would go into the auto parts and scrap metal business together, with the auto parts and scrap metal to be sold by the joint venture coming from vehicles purchased at motor vehicle auctions using Adkins Enterprises' dealer license.3 (Section 320.27, Florida Statutes, provided then, as it still does, that only licensed dealers could purchase vehicles at these auctions.) Respondent also agreed to rent out space to S & S Auto at Adkins Enterprises' 4709 East Hillsborough Avenue location (Adkins' Location). Sometime in or around 2005, Sham sold his interest in S & S Auto to his two brothers, Blacks and Prim. As far as Respondent understood, however, Sham continued to act on behalf of S & S Auto.4 Also in or around 2005, S & S Auto applied for and obtained a motor vehicle dealer license from HSMV. Because Adkins Enterprises no longer had its dealer license (it having expired in April 2005), S & S Auto's dealer license was used to purchase (at auction), not only the vehicles it sold as a licensed motor vehicle dealer, but also the vehicles from which the parts and scrap metal for the joint venture between Adkins Enterprises and S & S Auto were obtained. After they were purchased at auction, the vehicles were transported to Adkins' Location on a tow truck operated by Blacks. Space was set aside at Adkins' Location for S & S Auto to conduct motor vehicle sales operations. Insofar as Respondent knew, Dale Marler was in charge of these operations. Sham helped Mr. Marler out, but most of Sham's time at Adkins' Location (where he had a regular presence) was devoted to the auto parts/scrap metal joint venture in which Adkins Enterprises and S & S Auto were participants. (It was at Adkins' Location where the vehicles purchased for the joint venture were stripped and crushed, and the salvaged auto parts were sold.) When he had the time, as a favor, Respondent would take tag and title paperwork to the HSMV local office for Mr. Marler and/or Sham. As of January 4, 2007, Sham and Mr. Marler were still working out of Adkins' Location and engaging in the business activities described above. On that day, Respondent agreed, at Sham's request, to go to the local HSMV office and purchase temporary tags for S & S Auto's motor vehicle sales operations at Adkins' Location. In addition to the money to make the purchase, Sham provided Respondent with S & S Auto's HSMV- assigned Personal Identification Number (PIN), which Respondent had to give to the HSMV clerk in order to initiate the transaction. Respondent went to the local HSMV office, as Sham had requested, later that same day (January 4, 2007). He told the clerk that he was there to purchase 25 temporary tags for S & S Auto, and he gave her S & S Auto's PIN. The clerk inputted the information Respondent had provided her into the HSMV computer system and produced a completed HSMV Form 83090, which represented S & S Auto's application for 25 temporary tags (S & S Auto's Application). The clerk printed out copies of S & S Auto's Application, and Respondent signed the "agency copy" on the "Authorized Representative for Dealership" signature line. At the clerk's request, he showed her his driver's license, and she wrote down his driver's license number next to his signature on the application. Respondent left the office with 25 temporary tags (numbered Q415821 through Q415845), for which he paid $53.00. Respondent did not knowingly provide any false or misleading information in obtaining these tags. He honestly believed that he was acting as the "Authorized Representative" of S & S Auto in this transaction, as he represented by placing his signature on the "agency copy" of S & S Auto's Application. When he returned to Adkins' Location, Respondent put the 25 temporary tags that had been purchased at the local HSMV office in a file for Mr. Marler and Sham to use. He had nothing further to do with the tags.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of May, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2011.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by James H. Peterson, III, 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 May 29, 2013 9:29 AM Division of Administrative Hearings DONE AND ORDERED this ag day of May, 2013, in Tallahassee, Leon County, Florida. Buréau 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 at. day of May, 2013. Vows te Dealer Kicense Administra" ~ NOTICE OF APPEAL RIGHTS ).. 4-. > Nalini Vinzyak, 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/jdc Copies furnished: Micahel Khanjahanbakhsh, President Car Store of Altamonte, Inc. 425 Devon Place Heathrow, Florida 32746 Michael J. Alderman, Esquire Department of Highway Safety 2900 Apalachee Parkway, MS61 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 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS? Fr (™ fer Bf 0° MAY 20 2013 Daot. of Higitsay Sa: Orcs DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, Case No.: 13-1185 v. CAR STORE OF ALTAMONTE, INC., Respondent. / SETTLEMENT STIPULATION AND MOTION TO RELINQUISH JURISDICTION Petitioner, Department of Highway Safety and Motor Vehicles, and Respondent, Car Store of Altamonte, 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. Respondent agrees to pay an administrative fine of five hundred dollars ($500). 2. If Respondent pays the amount specified in paragraph one 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 one 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. 3. If after suspension Respondent pays the amount specified in paragraph one above within 30 days following the date of suspension, its motor vehicle dealer license will : 3 a : : : a a aH ro 7 S ‘ : : : i “ & = . . : : x 7 . . . a “ 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. 4. If the Department suspends or revokes Respondent’s motor vehicle dealer license for non-payment as specified in paragraphs two and three 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. 5. It is expressly understood that this Settlement Stipulation has no force and effect until the Department enters a Final Order adopting same. 6. 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. 7. 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. 8. Respondent waives the right to seek any attorney’s fees or costs from the Department 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. NYS o Signed this 22 214. of, 2013 Signed this 16 day of Nan , 2013. Vudu BAELLLEAE Mehaal FT. levine Michael Khanjahanbakhsh, President AssistantGeneral Counsel Car Store of Altamonte, Inc. Department of Highway Safety 1380 East Altamonte Drive and Motor Vehicles Altamonte Springs, Florida 32701 2900 Apalachee Parkway Tallahassee, Florida, 32399 Attorney for Petitioner w ue. STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF MOTORIST SERVICES, ) ) ) ) Petitioner, ) ) vs. ) Case No. 13-1185 ) CAR STORE OF ALTAMONTE, INC., ) ) Respondent. ) ) ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the 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 7, 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 21st day of May, 2013, in Tallahassee, Leon County, Florida. Witton Fo Quatteban WILLIAM F. QUATTLEBAUM 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 21st 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 Dennis S. Valente, Esquire Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399 dennisvalente@flhsmv.gov Michael Khanjahanbakhsh Car Store of Altamonte, Inc. 425 Devon Place Heathrow, Florida 32746
The Issue The issue for determination in this proceeding is whether Petitioner is entitled to the specific exemption in Section 320.642(5), Florida Statutes, from the general notice and protest provisions in Section 320.642.
Findings Of Fact Landmark Chevrolet, Inc., d/b/a A1 Mandel Chevrolet ("Landmark") operated a Chevrolet dealership located at 15455 West Dixie Highway, North Miami Beach, Dade County, Florida until August 2, 1989. Landmark operated the dealership pursuant to: (a) a Dealer Sales and Service Agreement (the "Dealer Agreement") between Landmark and Petitioner; and (b) a Franchised Motor Vehicle Dealer License from Respondent, License Number 9VF-10574. On August 2, 1989, Landmark ceased customary sales and service business operations. Respondent revoked Landmark's license on October 12, 1989. The license revocation resulted from an independent investigation conducted by Respondent. Petitioner notified Landmark on August 17, 1989, of Petitioner's intent to terminate the Dealer Agreement pursuant to Section 320.641, Florida Statutes. A copy of the notice of intent to terminate was furnished to Respondent in accordance with the requirements of Section 320.641. Landmark filed a Complaint with Respondent on November 15, 1989, contesting Petitioner's termination of the Dealer Agreement. The Complaint invoked the protection of Section 320.641, Florida Statutes. Pursuant to Section 320.641(7), Petitioner was prohibited from terminating the Dealer Agreement prior to a final adjudication in the franchise cancellation proceeding. Landmark's Complaint was referred to the Division of Administrative Hearings on December 6, 1989. Petitioner filed a motion to dismiss the Complaint. Petitioner's motion to dismiss was granted in a recommended order entered by Hearing Officer Michael Parrish on January 22, 1990. A final order dismissing Landmark's Complaint was entered by Respondent on April 30, 1990. The time for appealing the final order expired on May 30, 1990, without appeal. Petitioner notified Respondent on December 5, 1990, of Petitioner's intent to open a successor dealer for Landmark. Respondent determined in a letter dated December 19, 1990, that the proposed opening of the successor dealer was not exempt from the notice and protest provisions of Section 320.642, Florida Statutes. Respondent determined that the 12 month period of exemption began to run on October 12, 1989, when Landmark's license was revoked and expired prior to the date of the proposed opening of the successor dealer. Petitioner had no prior notice of either Respondent's intent to revoke Landmark's license or the actual revocation of Landmark's license. Petitioner first learned of Respondent's revocation of Landmark's license on December 19, 1990. At that time, Respondent notified Petitioner that the 12 month period of exemption from protest had expired for purposes of the proposed opening of the successor dealer in North Miami Beach. Respondent's determination that the 12 month period of exemption in Section 320.642(5), Florida Statutes, began on the date that Landmark's license was revoked constituted incipient agency action. The incipient agency action taken by Respondent deviated from Respondent's prior practice. Respondent's action determined the substantial interests of Petitioner. Petitioner was prohibited by Section 320.641(7), Florida Statutes, from opening a successor dealer pursuant to Section 320.642(5) until a final adjudication was entered in the franchise cancellation proceeding under Section 320.641. Landmark's license was revoked on October 12, 1989. The franchise cancellation proceeding began on November 15, 1989, when the Landmark filed its complaint. A final order was entered in the franchise cancellation proceeding on April 30, 1990. The time for appeal expired on May 30, 1990. Petitioner did not notify Respondent of Petitioner's intent to open a successor dealer until December 5, 1990. Proposed Rule 15C-7.004 was published in the Florida Administrative Weekly, Vol. 17, No. 16, at page 1721, on April 19, 1991. 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)4 Proposed Rule 15C-7.004(4)(a) was published prior to the formal hearing but will not become effective until after the formal hearing.5 Respondent's determination in this proceeding, that a closing occurs upon the revocation or surrender of a dealer's license, is consistent with Proposed Rule 15C-7.004(4) (a).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order should be entered denying Petitioner's request for an exemption from protest under Section 320.642(5), Florida Statues, for the proposed opening of a successor dealership. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of July, 1991. DANIEL MANRY 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 15th day of July, 1991.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by June C. McKinney, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Dismissal, a copy of which is attached, and incorporated by reference, in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Respondent, Rick Case Sunrise, LLC d/b/a Rick Case Kia, be granted a license to sell vehicles manufactured by Kia (KIA) at 1650 Sawgrass Corporate Parkway, Sunrise, (Broward County), Florida 33323, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed February 6, 2013 12:50 PM Division of Administrative Hearings DONE AND ORDERED this day of Febery 2013, in Tallahassee, Leon County, bil bo Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motorist Services thi Ue d f-Janauty. 03. is say ofa NOTICE OF XPPEAL: 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/jc Copies furnished: Andy Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard, South, Suite 202 Tallahassee, Florida 32312 Andy.bertron@nelsonmullins.com Robert E. Sickles, Esquire Hinshaw & Bulbertson, LLP 100 South Ashley Drive, Suite 500 Tampa, Florida 33602 Rsickle@hinshawlaw.com Colm Moran, Esquire Hogan Lovells US, LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, California 90067 Colm.moran@hoganlovells.com R. Craig Spickard, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 3203 cspickard@flb-law.com June C. McKinney Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
The Issue Is Ann L. Bell (Ms. Bell) entitled to the issuance of a license to act as an independent motor vehicle dealer through A & B Auto Sales of Jacksonville, Inc. (A & B), that license to be issued by the Department of Highway Safety and Motor Vehicles (the Department)? See Section 320.27, Florida Statutes.
Findings Of Fact Ms. Bell made application to the Department for an independent motor vehicle dealer license. The name of the business would be A & B. The location of the business would be 7046 Atlantic Boulevard, Jacksonville, Florida. In furtherance of the application Ms. Bell received a certificate of completion of the motor vehicle dealer training school conducted by the Florida Independent Automobile Dealers Association on January 26 and 27, 1999. Ms. Bell submitted the necessary fees and other information required by the Department to complete the application for the license, to include the necessary surety bond. At present Ms. Bell lives at 98 Kent Mill Pond Road, Alford, Florida, some distance from Jacksonville, Florida. Ms. Bell intends to move to Jacksonville, Florida, if she obtains the license. Ms. Bell's work history includes a 35-year career with the State of Florida, Department of Insurance, from which she retired as a Deputy Insurance Commissioner. Her duties included supervision of employees and auditing. More recently Ms. Bell has worked as an insurance agent for approximately five years with Allstate Insurance. Ms. Bell also had 17 years' experience involving a business with her former husband in retail floor covering in which she dealt with sales staff and contracts. During another marriage, her then-husband was involved in the automobile business in Mobile, Alabama, as well as the Florida panhandle. Ms. Bell was not an employee of the automobile business conducted by her husband. Ms. Bell was "in and out" of the dealership and attended automobile auctions with her husband. Ms. Bell intends to locate her dealership at the address where Mr. Badreddine formerly operated an independent motor vehicle dealership. Ms. Bell has known Mr. Badreddine for approximately 10 to 12 years. Ms. Bell has purchased cars from Mr. Badreddine. Ms. Bell has borrowed money from Mr. Badreddine. Mr. Badreddine has borrowed money from Ms. Bell. Ms. Bell has a lease related to the location where she would operate her dealership. At present Ms. Bell is using the prospective business location to collect on some accounts for automobiles purchased through Mr. Badreddine in which Ms. Bell has bought the accounts receivable from Mr. Badreddine. The arrangement concerning the accounts receivable is one in which Mr. Badreddine is expected to assist in the collection of monies owed on the accounts. The customers involved with those accounts are Arabs and African Americans. Mr. Badreddine is fluent in Arabic. The amount of money which Ms. Bell has invested is approximately $35,000, in relation to the purchase of the accounts receivable. If Ms. Bell obtains the license she intends to employ Mr. Badreddine to sell automobiles at her lot and to be involved in the purchase of cars at automobile auctions. These duties would be in addition to the collection on the accounts receivable which Ms. Bell purchased from Mr. Badreddine. Ms. Bell does not intend to allow Mr. Badreddine access to the company bank accounts or the completion of the necessary paperwork when cars are sold to the public from her business. In the past, Mr. Badreddine held independent motor vehicle dealer licenses issued by the Department. He lost those licenses based upon unacceptable performance under their terms. Ms. Bell is not unmindful of Mr. Badreddine's performance as a licensee, being informed by the Department in the details. Mr. Badreddine held an independent motor vehicle dealer's license under the name A & D Wholesale, Inc. (A & D), for a business at 9944 Beach Boulevard, Jacksonville, Florida. The Department issued an administrative complaint against that license in Case No. DMV-94FY-566, concerning problems in cars sold by A & D in which the titles and registrations were not transferred appropriately and emissions tests were not performed appropriately. This case was disposed of through an informal hearing and a $5,000 administrative fine was imposed. A further complaint was made against the licensee for the business A & D under an administrative complaint drawn by the Department in Case No. DMV-97FY-621. This complaint involved problems in title and registration transfer, failure to pay an existing lien on a trade-in, and the payment for automobiles obtained in automobile auctions upon which the drafts were not honored. No request for an administrative proceeding was received in relation to this administrative complaint. A final order was entered which revoked the independent motor vehicle dealer's license in relation to A & D. Subsequently, Mr. Badreddine made an application for an independent motor vehicle dealer's license under the business name King Kar Auto Sales, Inc. (King Kar) for the address at which Ms. Bell would operate her business. The decision was made to grant Mr. Badreddine's request for an automobile dealer license for King Kar. Following the grant of the license to King Kar an administrative complaint was brought in Case Nos. DMV-99FY-165 and DMV-99FY-166. The complaint involved the failure to pay off a lien, in which a check intended to settle the account with the lien holder was dishonored and falsification of the application in support of the license for King Kar. The final order disposing of these cases was premised upon the recognition that the license for King Kar had been revoked by virtue of the failure to maintain the necessary surety bond, rendering the allegations in the complaint moot. In the conduct of his automobile business Mr. Badreddine was accused of obtaining property in return for a worthless check involved in dealings with GMAC Corporation. The check was in the amount of $16,671.38. This action was taken in the case of State of Florida vs. Amine Badreddine, in the Circuit Court of Duval County, Florida, Case No. 98-13690CFCR-E. Mr. Badreddine entered a plea of guilty to obtaining property in return for a worthless check and was placed upon probation for a period of one year, with a requirement to make restitution. Adjudication of guilt was withheld. In a discussion between Ms. Bell and Cindy King, Department Compliance Examiner and Nadine Allain, Regional Administrator for the Department, Ms. Bell told the Department employees that Ms. Bell would need Mr. Badreddine to go to the automobile auctions and that "she didn't think it was lady-like to go to an auction." This is taken to mean that Ms. Bell did not believe she should go to the automobile auctions. Ms. Bell also told the Department employees that she needed Mr. Badreddine to sell automobiles for her, that he was a good salesman and that he was good at dealing with Arabs and she was not. Ms. Bell noted that she didn't live in the area where the dealership would be operated and referred to her purchase of the accounts receivable. Ms. Bell told the Department employees that Mr. Badreddine would be given an office in the back of the dealership or in the dealership. Ms. Bell told the Department employees that "she knew absolutely nothing about selling cars." Ms. Bell indicated that she would be relying upon Mr. Badreddine for advise in running her dealership. The reliance on Mr. Badreddine to deal with Arab clients was mentioned pertaining to the circumstances with the previous accounts receivable. The Department offered to license Ms. Bell upon condition that Ms. Bell provide an affidavit to the effect that Mr. Badreddine would not be involved with her dealership. Ultimately, Ms. Bell did not accept this overture. In denying the application for the independent motor vehicle dealer's license the Department gave the following reasons: Your admission of not knowing anything about the car business coupled with your stated intention to rely on the advice and experience of Mr. Amine Badreddine to operate your dealership means that Mr. Badreddine is, de facto, the dealer. Mr. Badreddine previously held independent motor vehicle dealer license number VI-15265, as A & D Wholesale, Inc. An administrative complaint was filed by the department against his dealership involving consumer complaints filed by Gladys L. Stevens, complaint number 93110148; Merrian A. Coe, complaint number 94010340; and Richard Green, complaint number 94030339. As a result of the administrative action, Mr. Badreddine's license was found in violation and fined $5,000.00 for failure to apply for transfer of title within 30 days, issuing more than two temporary tags to the same person for use on the same vehicle, violation of any other law of the state having to do with dealing in motor vehicles, failure to have a vehicle pass an emissions inspection within 90 days prior to retail sale and failure to transfer title. On December 23, 1996, a second administrative complaint was filed against A & D Wholesale, Inc. because of complaints received from Mark S. Smith, complaint number 96020168; Telmesa C. Porter, complaint number 96050435; Nijole Hall, complaint number 96070365; Ella Didenko, complaint number 96080083; Salih Ferozovic, complaint number 96100067; Charles R. Wells, complaint number 9610068; and Adessa Auto Auction, complaint number 96110372. As a result of this administrative action, a Final Order was issued on January 27, 1997 revoking Mr. Badreddine's independent motor vehicle dealers [sic] license for failure to apply for a transfer of title within 30 days, - failure to comply with the provisions of section 319.23(6), F.S., failure to have a vehicle pass an emission inspection prior to retail sale, issuance of more than two temporary tags to the same person for use on the same vehicle, failure to have a title or other indicia of ownership in possession of the dealership from the time of acquiring the vehicle until the time of disposing of the vehicle, failure of a motor vehicle dealer to honor a check or draft. Mr. Badreddine applied for and was issued another motor vehicle dealer's license on April 24, 1998, under the name King Kar Auto Sales, Inc. The license was revoked on October 20, 1998, because of a surety bond cancellation. On November 24, 1998, the department received a complaint from Treflyn N. Congraves, complaint number 98070299. Ms. Congraves filed a complaint with the state attorney which resulted in Mr. Bareddine [sic] being placed on probation for issuing a bad check to GMAC and ordered to pay restitution in the amount of $16,571.38. Mr. Badreddine is currently on probation. The department's investigation showed that Mr. Badreddine had a history of bad credit, failed to continually meet the requirements of the licensure law, failed to honor a bank draft or check given to a motor vehicle dealer for the purchase of a motor vehicle by another motor vehicle dealer, and had failed to satisfy a lien. Consequently, Mr. Badreddine's poor performance as a dealer forces us to deny a license where he may have a financial interest, active participation in the management, sales or any part in the operation of the dealership.
Recommendation Upon consideration of the Facts Found and the Conclusions of Law reached, it is RECOMMENDED: That a final order be entered which grants Ann L. Bell an independent motor vehicle dealer license for the business A & B. DONE AND ENTERED this 17th day of November, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 17th day of November, 1999. COPIES FURNISHED: Edward P. Jackson, Esquire Jackson & Mason, P.A. 516 West Adams Street Jacksonville, Florida 32202 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 Tallahassee, Florida 32399-0500
