The Issue Whether Petitioner’s application for a motor vehicle dealer license should be granted or denied.
Findings Of Fact Petitioner, Global Express, LLC. (Global Express), is a limited liability company which has submitted to Respondent an application for a license as a motor vehicle dealer under the fictitious name of Auto Zone Auto Sales (the subject application). Johnny Romero and Rosangela Romero, who are husband and wife, are the members and managers of Global Express. Mr. Romero is also known as Johnny Guillermo Romero Peguero.1 Both Mr. and Mrs. Romero signed the subject application on behalf of Global Express before a notary public on May 4, 2009. The following language is contained above the signature lines: Under penalty of perjury, I do swear or affirm that the information contained in this application is true and correct . . . Part 5 of the application form requires that the “applicant, partner, or corporate officer or director” answer yes or no to certain questions (the Certifications). Each dealership officer is required to answer these questions under penalties of perjury. Relevant to this proceeding, both Mr. and Mrs. Romero answered the following question in the negative: Has this applicant, partner, or corporate officer or director ever had a surety bond cancelled? Relevant to this proceeding, both Mr. and Mrs. Romero answered the following question in the negative: Has this applicant, partner, or corporate officer or director ever been denied or had a dealer license suspended or revoked in Florida or any other jurisdiction? In addition to the foregoing, Mr. and Mrs. Romero answered the following question in the affirmative: Has this applicant, partner, or corporate officer or director ever been a licensed dealer in Florida or any other jurisdiction? Under their affirmative response Mr. and Mrs. Romero inserted information reflecting that they had previously been licensed dealers under the license numbered VI/1018283. Pursuant to application executed by Mr. and Mrs. Romero on January 11, 2007, Respondent issued motor vehicle dealer license numbered VI/1018283 to Pronto Cars Corp. (Pronto). Pronto’s motor vehicle dealer license bond was cancelled by its surety, Nova Casualty Company, by notice dated December 18, 2007. Pronto’s motor vehicle dealer license was suspended by Respondent by Order of Emergency Suspension and Administrative Complaint dated March 20, 2008. That case was assigned the following case number by Respondent: DMV-08-479. The Order suspended Pronto’s motor vehicle dealer license because Pronto’s surety had cancelled its bond. There was a conflict in the evidence as to whether Mr. Romero ever received a copy of the Emergency Final Order and Administrative Complaint in case DMV-08-479. That conflict is resolved by finding that Ms. Pierre-Lys, acting in her capacity as a compliance officer for Respondent, served a copy of the Order of Emergency Suspension and Administrative Complaint on Mr. Romero on April 16, 2008. Mr. Romero, on behalf of Pronto, signed and submitted an election of rights form dated May 5, 2008, which provided, in relevant part, as follows: “I have read the Administrative Complaint filed in this matter [DMV-08-479] and understand my options.” Immediately before Mr. Romero’s signature is a check in a box indicating that Mr. Romero was exercising the following option: “I have not obtained a surety bond and wish to voluntarily relinquish my motor vehicle license. I have completed and am returning the Voluntary Relinquishment of License form within 21 days from the date of my receipt of this administrative complaint.” On May 23, 2008,2 Respondent issued its Final Order in its case number DMV-08-479, thereby canceling Pronto’s motor vehicle dealer’s license. The Final Order directed Pronto to surrender its license and all dealer and temporary tags in its possession. The Final Order also contained the following: It is further ORDERED and ADJUDGED that the Order of Emergency Suspension and Administrative Complaint filed herein is DISMISSED and this case is hereby CLOSED. Mr. Romero called Respondent’s compliance officer, Luz Irizarry, on March 6, 2009, told her that he wanted to obtain a motor vehicle dealer license, and asked whether he would have to go to a school for new dealers. Ms. Irizarry referred the inquiry to Ms. Buck, who determined that Mr. Romero would have to attend the school because Pronto had received consumer complaints, Pronto’s surety had cancelled its bond, and Pronto’s license had been suspended and subsequently revoked. On March 9, 2009, Ms. Irizarry informed Mr. Romero of the reasons he would have to go to dealer school, and specifically discussed with him the fact that Pronto’s operations had been suspended. When he signed the Certifications on May 4, 2009, Mr. Romero had actual knowledge that Pronto’s surety bond had been revoked and that Pronto’s motor vehicle dealer license had been suspended. Mr. Romero’s contends that he was confused about his answers because he thought he had bought the surety bond for its full term and because he thought the Final Order entered by Respondent dismissed the suspension of his license. Those contentions are rejected. It is clear from his answer pertaining to the license that had been issued to Pronto that Mr. Romero understood as a principal of Pronto he would have to disclose the revocation of Pronto’s surety bond and the suspension of Pronto’s motor vehicle dealer license on the subject application. Mr. and Mr. Romero’s Certifications under section 5 of the subject application pertaining to the revocation of a surety bond and the suspension of a motor vehicle dealer license are willful, material misrepresentations of fact. On February 26, 2008, Respondent discovered that Pronto had moved its business location and was doing business at a location that had not been approved by Respondent. On April 1, 2009, Mrs. Romero drove a motor vehicle displaying a “For Sale” sign. The vehicle had a temporary tag on it that had been issued to Pronto. The possession of that temporary tag violated the Final Order entered in Respondent’s case number DMV-08-479, which ordered Pronto to immediately surrender all temporary tags to Respondent. On April 27, 2009, Mrs. Romero displayed, or acquiesced in the display of, another car with a “For Sale” sign on it parked in front of Global Express’s proposed, but unlicensed, location. That car had a temporary tag on it that had been issued to Pronto. The temporary tag was filled out to show the name of another dealer. The possession of that temporary tag violated the Final Order entered in Respondent’s case number DMV-08-479, which ordered Pronto to immediately surrender all temporary tags to Respondent. On April 2, 2009, Mr. Romero had 13 motor vehicles titled in his name. Although he asserts that some of the motor vehicles were bought in conjunction with a taxi service he operated, he admitted that some of these vehicles had been purchased for resale. Mr. Romero acquired a 1966 Ford motor vehicle on May 9, 209, and sold the vehicle on May 21, 2009. Mr. Romero acquired a 1999 Chevrolet motor vehicle on May 18, 2009, and sold the vehicle on May 25, 2009. Mr. Romero acquired another Chevrolet motor vehicle on May 20, 2008, and sold the vehicle on May 31, 2009. Respondent established that during April and May 2009, Mr. Romero engaged in the business of dealing in motor vehicles without a license. On March 30, 2009, Mr. Romero paid Respondent for the registrations of ten motor vehicles with worthless checks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent Department of Highway Safety and Motor Vehicles enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order deny the subject application. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2009.
Findings Of Fact Respondent, Dick's Auto Sales, Inc., is the holder of a motor vehicle dealer license issued by the Petitioner, Department of Highway Safety and Motor Vehicles ("the Department"). Richard R. Borst ("Borst") is the president of Respondent Dick's Auto Sales, Inc., and one of two stockholders in the company. At all times material hereto, the Respondent maintained a business address at 110 N.W. 18th Avenue, Delray Beach, Florida. Borst also operates an auto parts business at the same address as the motor vehicle dealership. On or about June 9, 1989, Borst appeared before the Honorable James C. Payne, U.S. District Judge for the Southern District of Florida, and entered a plea of guilty to aiding and abetting the transportation of stolen motor vehicle parts in violation of Title 18 U.S.C. Section 2314 & 2 in Case Number 89-6032- Cr-PAYNE-(01), United States v. Richard Borst,. Based on the plea entered and the plea agreement then before the court, Borst was adjudicated guilty in a Criminal Judgment dated June 28, 1989. Imposition of a sentence of confinement was suspended and Borst was placed on probation for a period of three (3) years. Borst was also fined Fifty Dollars ($50.00). Borst's conviction arose in connection with his purchase of auto parts from a "chop shop" (i.e., an operation which dismantled stolen cars and sold the parts,) in the Connecticut area. The purchase took place in May, 1987. In April, 1988, Borst met with state and federal investigators and agreed to fully cooperate with a task force set up to investigate the operation. He also agreed to testify against the individuals involved. While Borst was in Connecticut waiting to testify, the other defendants entered guilty pleas. In Respondent's initial dealer license application dated September 24, 1987, Borst stated under oath that he was not facing criminal charges. On April 27, 1989, Borst, as president of Respondent, signed an application to renew Respondent's license, stating under oath: Under penalty of perjury, I do swear or affirm that the information contained in this application is true and correct and that nothing has occurred since I filed my last application for a license or application for renewal of said license, as the case may be, which would change the answers given in such previous application. On January 18, 1989, Borst and his attorney signed a "Consent to Transfer of Case for Plea and Sentence", in United States v. Richard Borst, Criminal No. B-89-6-(TFGD), United States District Court for the District of Connecticut (the "Connecticut Case"). This document expressly acknowledges that an Information was pending against Borst in the United States District Court for the District of Connecticut, that Borst wished to plead guilty to the offense charged, and that he consented to the disposition of the case in the Southern District of Florida. The Information entered in the Connecticut Case, charged Borst with violation of 18 U.S.C. Sections 2314 and 2, for transporting motor vehicle parts in interstate commerce knowing them to have been stolen. The date of this Information was not established, but it was clearly on or before January 18, 1989. Thus, sometime prior to January 18, 1989, Borst was charged with criminal violations of 18 U.S.C. Sections 2314 and 2, and these charges were pending when Borst signed and filed Respondent's renewal application for 1989. Petitioner contends that Borst's conviction is directly related to the business of being a motor vehicle dealer, especially since Borst operates a motor vehicle parts business in conjunction with his motor vehicle dealership. However, the evidence presented provided only a very limited factual background regarding the conviction, none of Petitioner's representatives talked with the investigators or prosecutors in the criminal case and no evidence was presented regarding the Respondent's role in the transactions leading to Borst's conviction. At the time of the hearing, Borst was fifty-three (53) years of age. Within the last twenty-four (24) months, he has suffered numerous health problems including a nervous breakdown which necessitated an eighteen (18) week period of confinement to his residence for rest. He currently undergoes twice- weekly therapy with a psychiatrist and has been taking an antidepressant prescription. In addition, in October of 1989, he was admitted to the hospital for a heart condition. Subsequently, a balloon angioplasty was performed on him. He was later re-admitted to the hospital for five (5) days as a result of post surgery complications. He is also an insulin dependent diabetic. He attributes most of these health problems to the stress and turmoil of his criminal conviction. In light of his emotional and physical condition, he has been required to reduce his work load. Borst has been actively trying to sell the existing business in order to retire the outstanding indebtedness on the business and the property on which it is located. There is no evidence that the Respondent and/or any of its duly elected officers or stockholders have ever been subjected to any other complaints and/or investigations by the Department or by any other investigatory or regulatory agency during the past seventeen (17) years since it was originally licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a Final Order which finds Respondent not guilty of the violation alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990. J. STEPHEN MENTON 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 5th day of June, 1990.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Voluntary Dismissal With Prejudice, 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 October 1, 2010 4:40 PM Division of Administrative Hearings. DONE AND ORDERED this / & day of October, 2010, in Tallahassee, Leon County, Florida. Y , CARL A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this_/st day of October, 2010. loos y Nalini Vinayak, Dealer ‘Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Jason T. Allen, Esquire Bass, Sox & Mercer 2822 Remington Green Circle Tallahassee, Florida 32308 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
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Filing withdrawing its Notice of Intent to Establish Additional Dealership, 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 that this case is CLOSED and no license will be issued to Genuine Scooters, LLC and Boca Scooters, LLC to sell Genuine Scooters-manufactured by Motive Power Industry Co., Ltd. (MOTI) and LML Limited (LMLL) at 389 Northwest 1 Avenue, Boca Raton (Palm Beach County), Florida 33432. Filed June 19, 2014 7:43 AM Division of Administrative Hearings DONE AND ORDERED this 1 day of June, 2014, in Tallahassee, Leon County, Florida. Filed in the official records of the Division of Motorist Services this day of June, 2014. Wal» On c Nalini Vinayak, Dealer License Administrator Copies furnished to: Nalini Vinayak Dealer License Section Kenneth L. Paretti, Esquire Quinton and Paretti, P.A. 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 kparetti@quintonparetti.com Trey Duren Genuine Scooters, LLC 5400 North Damen Avenue Chicago, Illinois 60625 Cobur Julie 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 Colton Ralston Boca Scooters, LLC 389 Northwest 1st Avenue Boca Raton, Florida 33432 Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure.
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be granted an Independent Motor Vehicle Dealer License, pursuant to Section 320.27, Florida Statutes (2008).
Findings Of Fact The Department is an agency of the State, charged with regulating the business of buying, selling or dealing in motor vehicles under § 320.27, Florida Statutes (2007). The Respondent applied for a license as an Independent Motor Vehicle Dealer. The application was signed by Harold Gillis. Mr. Gillis is the Respondent's president and sole corporate officer. The Resident Agent is Andrew Kiswani. Mr. Kiswani is also known as Alex Kiswani and Andy Kiswani. On the insurance certificate filed with the license application, Mr. Kiswani is shown as one of the named insureds. Named insureds on this type of insurance certificate are typically the dealer principals, the people actually operating the dealership. Mr. Kiswani is a convicted felon. He was convicted twice for theft of state funds. He has thirteen convictions of failure to file state tax returns and seven convictions of issuance of worthless checks to the Department of Revenue. Mr. Kiswani previously was licensed as a Motor Vehicle Dealer, as President of Ocala Auto and Truck Sales, Inc. That license expired on April 30, 2008. On May 19, 2008, Mr. Gillis and Mr. Kiswani displayed vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed location. Both of them were warned by Department employees to cease the unlicensed activity. On June 2, 2008, Mr. Gillis and Mr. Kiswani again displayed motor vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed premises. They were again warned by Department employees to cease the unlicensed activity. On June 11, 2008, Ocala Auto and Truck Sales, Inc. sold a car to James Reed. That seller failed to apply for a Certificate of Title on behalf of Mr. Reed and failed to pay off a lien on the vehicle, within 10 days of acquisition of the vehicle. Ocala Auto and Truck Sales, Inc., sold a vehicle to Wesley Leon Linsey. On February 7, 2007, the seller failed to apply for a Certificate of Title and registration within 30 days of delivery of the vehicle. On December 28, 2007, Ocala Auto and Truck Sales, Inc. entered into a contract with Darrell Lenamond for the consignment sale of a motor vehicle owned by Mr.Lenamond. Ocala Auto and Truck Sales, Inc. sold the vehicle and never paid Mr. Lenamond the money due him from the sale. Mr. Kiswani operated Mr. Gillis's previous dealership. He would be actively involved in operating the dealership for which the license is sought, by the Respondent Corporation, as its Resident Agent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED: That the Florida Department of Highway Safety and Motor Vehicles enter a Final Order denying the Respondent's license application. DONE AND ENTERED this 31st day of July, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Harold Gillis Certified Motors, Inc. 2895 South Pine Avenue Ocala, Florida 34471
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
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: In late 1990, Robert Sayre filed with Respondent an application for an independent motor vehicle dealer license authorizing him to do business as TNT Auto Sales at 2050 N.W. 36th Street in Miami, Florida. At the time, Sayre leased the location of his proposed business from James Philips. 1/ Sayre no longer holds a leasehold interest in the property. The property is now owned by Teobaldo Cabrera, who is leasing it to Fiory Motors, Inc. Fiory Motors, Inc., has a current license from Respondent to operate as an independent motor vehicle dealer on the property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioner's application for an independent motor vehicle dealer license on the ground that he neither owns nor leases the property identified in the application as "the exact location of [his proposed] place of business." DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11 day of September, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11 day of September, 1992.
The Issue Whether Florida Administrative Code Rule 15C-7.005 is a invalid exercise of legislatively delegated authority in violation of Section 120.52(8), Florida Statutes.
Findings Of Fact The Department is an agency of the State of Florida. The Department adopted Florida Administrative Code Rule 15C- 17.005, which became effective March 3, 1996. The Rule has not been amended since its initial adoption. JM Lexus and Lexus of Orlando are both licensed franchised motor vehicle dealers in the State of Florida. Lexus of Orlando has filed a complaint in the Ninth Circuit Court, Orange County, Florida, alleging, that JM Lexus violated Rule 15C-7.005 in connection with the alleged sale for resale of new Lexus vehicles to non-Lexus dealerships. FADA and SFADA are trade associations whose members are licensed motor vehicle dealers in the State of Florida and are substantially affected by the rule. Florida Administrative Code Rule 15C-7.005 provides the following: 15C-7.005 Unauthorized Additional Motor Vehicle Dealerships - Unauthorized Supplemental Dealership Locations. An additional motor vehicle dealership, as contemplated by Sections 320.27(5) and 320.642, Florida Statutes, shall be deemed to be established when motor vehicles are regularly and repeatedly sold at a specific location in the State of Florida for retail purposes if the motor vehicle dealer transacting such sales: Is not located in this state, or Is not a licensed motor vehicle franchised for the specific line-make, or Is a licensed motor vehicle dealer franchised for such line-make, but such sales are transacted at a location other than that permitted by the license issued to the dealer by the Department. Such sales are not subject to this rule, however, when a motor vehicle dealer occasionally and temporarily (not to exceed seven days) sells motor vehicles from a location other than the motor vehicle dealer's licensed location provided such sales occur within the motor vehicle dealer's area of sales responsibility (except a motor vehicle dealer who may be deemed a licensee under this rule). For the purpose of this rule, a sale for retail purposes is the first sale of the motor vehicle to a retail customer for private use, or the first sale of the motor vehicle for commercial use, such as leasing, if such commercial motor vehicle is not resold for a period of at least ninety days. Furthermore, this rule shall apply regardless of whether the titles issued, either in this or another state, pursuant to such sales are designated as "new" or "used." An additional motor vehicle dealership established in this fashion is unlawful and in violation of Section 230.642, Florida Statutes. A licensed motor vehicle dealer of the same line-make, as the vehicle being sold in violation of this rule, may notify the Department of such violation. The notice shall include motor vehicle identification numbers or other data sufficient to identify the identity of the selling dealer and initial retail purchaser of the motor vehicles involved. Within 30 days from receipt of a request from the Department containing motor vehicle identification numbers or other data sufficient to identify the motor vehicles involved, the licensee shall provide to the Department, to the extent such information is maintained by the licensee, copies of documents showing the dealer to whom each vehicle was originally delivered, any inter- dealer transfer and the initial retail purchaser as reported to the licensee. Upon a showing of good cause, the Department may grant the licensee additional time to provide the information requested under this paragraph. Examples of good cause include, but are not limited to, request for information on more than 100 vehicles, information on vehicle sales which accrued more than 2 years prior to the date of the request, and information which is no longer maintained in the licensee's current electronic data base. Within forty days of receipt of notice from the motor vehicle dealer, the Department shall make a determination of probable cause and if it determines that there is probable cause that a violation of this rule has occurred, the Department shall mail, by certified mail, return receipt requested, to the line-maker motor vehicle dealership or dealerships involved a letter containing substantially the following statement: Pursuant to Rule 15C-7.005, F.A.C., the undersigned has received a notice that you have allegedly supplied a substantial number of vehicles on a regular and repeated basis, which were sold at a location in the State of Florida, at which you are not franchised or licensed to sell motor vehicles. If these allegations are true, your conduct may violate Florida law including, but not limited to, the above-mentioned rule, Sections 320.61 and 320.642, Florida Statutes. It may also cause you to be deemed a licensee, importer and/or distributor pursuant to Florida law and subject you to disciplinary action by the Florida Department of Highway Safety and Motor Vehicles, including fines and/or suspension of your Florida Dealer license, if applicable. The Division of Motor Vehicles is putting you on notice, if you are conducting such activity, that you cease and desist such activity immediately. If you fail to do so, this agency will take appropriate action. If the dealer supplying vehicles in violation of subsections (1) and (4) is not located in the State of Florida, the Department shall notify such dealer in writing that they may be operating as a distributor of motor vehicles without proper authorization in violation of Section 320.61, Florida Statutes, and may be violating Section 320.642, Florida Statutes. A motor vehicle dealer, whether located in Florida or not, which supplies a substantial number of vehicles on a regular and repeated basis which are sold in the manner set forth in subsection (1), shall be deemed to have established a supplemental location in violation of Section 320.27(5), Florida Statutes, and Rule 15C-7.005, F.A.C. Furthermore, a motor vehicle dealer which supplies vehicles in this manner shall be deemed to have conducted business within the State of Florida and acted as a "licensee," "importer" and "distributor" as contemplated by Section 320.60, Florida Statutes, and thus such activity shall constitute a violation of Sections 320.61 and 320.642, Florida Statutes. Furthermore, this paragraph neither imposes any liability on a licensee nor creates a cause of action by any person against the licensee, except a motor vehicle dealer who may be deemed to have acted as a licensee under this paragraph. Furthermore, no provision of this entire rule creates a private cause of action by any person against a licensee, other than a dealer who is deemed a licensee pursuant to the provisions of subsection (4) of this rule, for civil damages; provided, however, if a licensee fails to comply with the requirements of paragraph (3)(a) of this rule, the Department may bring an action for injunctive relief to require a licensee to provide the information required. No other action can be brought against the licensee pursuant to this entire rule other than a dealer who is deemed to be a licensee pursuant to the provisions of subsection (4) of this rule. Any franchised motor vehicle dealer who can demonstrate that a violation of, or failure to comply with, the provisions of subsection (4) of this rule by a motor vehicle dealer, or a motor vehicle dealer which pursuant to subsection (4) shall be deemed to have conducted business and acted as a licensee, importer, and distributor, has adversely affected or caused pecuniary loss to that franchised motor vehicle dealer, shall be entitled to pursue all remedies against such dealers, including, but not limited to the remedies, procedures, and rights of recovery available under Sections 320.695 and 320.697, Florida Statutes. Rule 15C-7.005 identifies as specific authority Section 320.011, Florida Statutes. Section 320.011 states: The department shall administer and enforce the provisions of this chapter and has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement them. The Rule lists as "Law Implemented" Sections 320.27 and Sections 320.60-.70, Florida Statutes. Sections 320.60 through 320.70, Florida Statutes, are commonly referred to as the Motor Dealers Act. Section 320.27(1)(c), Florida Statutes, provides the following definitions for a motor vehicle dealer and a franchised motor vehicle dealer: (c) "Motor vehicle dealer" means any person engaged in the business of buying, selling, or dealing in motor vehicles or offering or displaying motor vehicles for sale at wholesale or retail, or who may service and repair motor vehicles pursuant to an agreement as defined in s. 320.60(1). Any person who buys, sells, or deals in three or more motor vehicles in any 12-month period or who offers or displays for sale three or more motor vehicles in any 12-month period shall be prima facie presumed to be engaged in such business. The terms "selling" and "sale" include lease-purchase transactions. . . The transfer of a motor vehicle by a dealer not meeting these qualifications shall be titled as a used vehicle. The classifications of motor vehicle dealers are defined as follows: 1. "Franchised motor vehicle dealer" means any person who engages in the business of repairing, servicing, buying, selling, or dealing in motor vehicles pursuant to an agreement as defined in s. 320.60(1). Subsection 320.27(2), Florida Statutes, requires motor vehicle dealers to be licensed. Subsection (5) of this same provision requires that "any person licensed hereunder shall obtain a supplemental license for each permanent additional place or places of business not contiguous to the premises for which the original license is issued." Section 320.27(9) authorizes the Department to discipline motor vehicle dealers for a variety of enumerated offenses. Among those enumerated offenses is the willful failure to comply with any administrative rule adopted by the department or the provisions of Section 320.131(8), Florida Statutes. § 320.27(9)(a)16., Fla. Stat. Section 320.60, Florida Statutes, provides definitions for terms used in Sections 320.61 through 320.70, Florida Statutes. Pertinent to this case are the following: "Agreement" or "franchise agreement" means a contract, franchise, new motor vehicle franchise, sales and service agreement, or dealer agreement or any other terminology used to describe the contractual relationship between a manufacturer, factory branch, distributor, or importer, and a motor vehicle dealer, pursuant to which the motor vehicle dealer is authorized to transact business pertaining to motor vehicles of a particular line-make. * * * (5) "Distributor" means a person, resident or nonresident, who, in whole or in part, sells or distributes motor vehicles to motor vehicle dealers or who maintains distributor representatives. * * * "Importer" means any person who imports vehicles from a foreign country into the United States or into this state for the purpose of sale or lease. "Licensee" means any person licensed or required to be licensed under s. 320.61. * * * (10) "Motor vehicle" means any new automobile, motorcycle, or truck, including all trucks, regardless of weight . . . the equitable or legal title to which has never been transferred by a manufacturer, distributor, importer, or dealer to an ultimate purchaser; (11)(a) "Motor vehicle dealer" means any person, firm, company, corporation, or other entity, who, Is licensed pursuant to s. 320.27 as a "franchised motor vehicle dealer" and, for commission, money, or other things of value, repairs or services motor vehicles or used motor vehicles pursuant to an agreement as defined in subsection (1), or Who sells, exchanges, buys, leases or rents, or offers, or attempts to negotiate a sale or exchange of any interest in, motor vehicles, or Who is engaged wholly or in part in the business of selling motor vehicles, whether or not such motor vehicles are owned by such person, firm, company, or corporation. * * * (14) "Line-make vehicles" are those motor vehicles which are offered for sale, lease, or distribution under a common name, trademark, service mark, or brand name of the manufacturer of same. Section 320.61, Florida Statutes, requires all manufacturers, factory branches, distributors or importers to be licensed. Section 320.63, Florida Statutes, describes the application process for obtaining licensure for manufacturers, factory branches, distributors or importers. The section authorizes the Department to require certain enumerated information as well as "any other pertinent matter commensurate with the safeguarding of the public interest which the department, by rule, prescribes." § 320.63(7), Fla. Stat. Section 320.64, Florida Statutes, provides in pertinent part: 320.64 Denial, suspension, or revocation of license; grounds.--A license of a licensee under s. 320.61 may be denied, suspended, or revoked within the entire state or at any specific location or locations within the state at which the applicant or licensee engages or proposes to engage in business, upon proof that the section was violated with sufficient frequency to establish a pattern of wrongdoing, and a licensee or applicant shall be liable for claims and remedies provided in ss. 320.695 and 320.697 for any violation of any of the following provisions. A licensee is prohibited from committing the following acts: * * * (3) The applicant or licensee willfully has failed to comply with significant provisions of ss. 320.60-320.70 or with any lawful rule or regulation adopted or promulgated by the department. * * * A motor vehicle dealer who can demonstrate that a violation of, or failure to comply with, any of the preceding provisions by an applicant or licensee will or can adversely and pecuniarily affect the complaining dealer, shall be entitled to pursue all of the remedies, procedures, and rights of recovery available under ss. 320.695 and 320.697. Section 320.642, Florida Statutes, provides the process for a licensee to establish additional motor vehicle dealerships or to relocate existing dealerships to a location where the same line-make vehicle is presently represented by a franchised motor vehicle dealer or dealers. Section 320.642, does not, by its terms, authorize rulemaking. Section 320.69, Florida Statutes, states in its entirety that "the department has the authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this law." Section 320.695, Florida Statutes, which contains no additional grant of rulemaking authority, provides: In addition to the remedies provided in this chapter, and notwithstanding the existence of any adequate remedy at law, the department, or any motor vehicle dealer in the name of the department and state and for the use and benefit of the motor vehicle dealer, is authorized to make application to any circuit court of the state for the grant, upon a hearing and for cause shown, of a temporary or permanent injunction, or both, restraining any person from acting as a licensee under the terms of ss. 320.60-320.70 without being properly licensed hereunder, or from violating or continuing to violate any of the provisions of ss. 320.60-320.70, or from failing or refusing to comply with the requirements of this law or any rule or regulation adopted hereunder. Such injunction shall be issued without bond. A single act in violation of the provisions of ss. 320.60-320.70 shall be sufficient to authorize the issuance of an injunction. However, this statutory remedy shall not be applicable to any motor vehicle dealer after final determination by the department under s. 320.641(3). Section 320.697, Florida Statutes, which also contains no additional grant of rulemaking authority, provides: Civil damages.--Any person who has suffered pecuniary loss or who has been otherwise adversely affected because of a violation by a licensee of ss. 320.60-320.70, notwithstanding the existence of any other remedies under ss. 320.60-320.70, has a cause of action against the licensee for damages and may recover damages therefor in any court of competent jurisdiction in an amount equal to 3 times the pecuniary loss, together with costs and a reasonable attorney's fee to be assessed by the court. Upon a prima facie showing by the person bringing the action that such a violation by the licensee has occurred, the burden of proof shall then be upon the licensee to prove that such violation or unfair practice did not occur.
