90-000175 Department Of Highway Safety And Motor Vehicles vs. Dick's Auto Sales, Inc. Status: Closed Recommended Order on Tuesday, June 5, 1990.

Summary: Petitioner pled guilty to aiding transportation of stolen auto parts; Statute authority to revoke license required establishment of pattern of wrongdoing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY )

SAFETY AND MOTOR VEHICLES, )

DIVISION OF MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0175

)

DICK'S AUTO SALES, INC., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, J. Stephen Menton, held a hearing in the above-

styled case on April 19, 1990, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

For Respondent: Craig R. Wilson, Esquire

Crystal Tree Office Center

1201 U.S. Highway 1, Suite 315

North Palm Beach, Florida 33408-3581

STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent's motor vehicle dealer

license should be disciplined as a result of the criminal conviction of the

Respondent's president and stock- holder, Richard Borst, for aiding and abetting

the interstate transportation of stolen property in violation of 18 U.S.C.

Sections 2 and 2314.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 25, 1989, the Petitioner, the

Department of Highway Safety and Motor Vehicles, sought to revoke Respondent's

motor vehicle dealer license. The Respondent timely requested a hearing on the

matter. The case was referred to the Division of Administrative Hearings which

noticed and conducted the hearing.

At the hearing, the Petitioner presented the testimony of Neil C. Chamelin,

Operations and Management Consultant Manager for the Division of Motor Vehicles

and Robert N. Overton, Regional Administrator for Region 9 of the Division of

Motor Vehicles. The Petitioner offered one exhibit into evidence (the Division

of Motor Vehicles' licensure file,) which was accepted without objection.

The Respondent called two witnesses: Richard Borst, president and a

stockholder of Respondent Dick's Auto Sales, Inc., and Patricia Borst, wife of

Richard Borst.

The Respondent offered three exhibits into evidence, all of which were

accepted. Respondent's Exhibit #1 is the face sheet of the Division of Motor

Vehicle's investigative report signed by its Regional Administrator, Robert N.

Overton; Respondent's Exhibit #2 is a composite consisting of six (6) letters

submitted by character witnesses for Richard Borst in the criminal case.

Although these letters were received into evidence as part of the record in the

criminal case, none of the authors of the letters were present to testify at the

hearing to authenticate or verify the contents of the letters. Respondent's

Exhibit #3 is a composite consisting of court documents and correspondence

generated during the investigation conducted by the U.S. Department of Justice,

Criminal Division, Organized Crime and Racketeering Section, Boston Strike

Force.

Prior to the hearing, Petitioner filed a Request For Official Recognition

regarding the federal criminal statutes involved, 18 U.S.C. Sections 2, 2314 and

3559. The Respondent also requested official recognition of the judgement

entered on June 28, 1989 and filed by the clerk of the United States District

Court, Southern District of Florida on June 29, 1989 in United States vs.

Richard Borst, Case No. 89-6032-Cr-PAYNE-(01)(The "Criminal Judgment"). At the

beginning of the hearing, the Respondent stipulated that official recognition be

taken of both the statutes and the Criminal Judgment. The parties also

stipulated that Richard Borst, the president and a stockholder in the Respondent

Dick's Auto Sales Inc., is the same Richard Borst named in the Criminal Judgment

and that, at all times material hereto, the Respondent, Dick's Auto Sales, Inc.,

held an independent motor vehicle dealer license, No. 9V1-011476, issued by the

Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles

pursuant to Section 320.27, Florida Statutes.

A transcript of the proceedings was filed with the Division of

Administrative Hearings on May 3, 1990. Both parties timely submitted proposed

recommended orders in accordance with the schedule agreed upon at the conclusion

of the hearing. A ruling on each of the parties' proposed findings of fact is

included in the appendix attached to this recommended order.

FINDINGS OF FACT

1. 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").

2. Richard R. Borst ("Borst") is the president of Respondent Dick's Auto

Sales, Inc., and one of two stockholders in the company.

3. 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.

4. 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).

5. 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.

6. In Respondent's initial dealer license application dated September 24,

1987, Borst stated under oath that he was not facing criminal charges.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. In light of his emotional and physical condition, he has been required

to reduce his work load.

14. 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.

15. 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.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes (1989).

17. The Petitioner has the burden to prove the violations alleged in the

Administrative Complaint. It is unclear whether the standard of proof is clear

and convincing evidence or simply a preponderance of the evidence. See, Ferris

vs. Turlington, 510 So.2d 292 (Fla. 1989). The result in this case is not

effected by the standard of proof applied.

18. Disciplinary action with respect to a state-issued cense is limited to

the offenses or facts alleged in the Administrative Complaint. Sternberg vs.

Department of Professional Regulation, Board of Medical Examiners, 465 So.2d

1324, 1325 (Fla. 1st DCA 1985). In this case, the only basis for disciplinary

action alleged in the Administrative Complaint was Richard Borst's criminal

conviction. No allegations were included in the Administrative Complaint that

Respondent's 1989 license renewal application contained misrepresentations or

misstatements. Thus, any such deficiencies in that application cannot serve as

a basis for disciplinary action in this proceeding.

19. The relevant part of 18 U.S.C. Section 2314 provides:

Who transports in interstate commerce any

goods, wares, merchandise, securities or

money, of the value of $5,000 or more, knowing

the same to be stolen, converted or taken by

fraud.

shall be fined not more than $10,000 or

imprisoned not more than 10 years, or both.

20. Pursuant to 18 U.S.C. Section 3559(a)(3), violation of 18 U.S.C.

Section 2314 is a felony.

21. Section 320.27(9), Florida Statutes, (1989) provides:

DENIAL, SUSPENSION, OR REVOCATION-The

Department may deny, suspend or revoke any

license issued here-under ..., upon proof that

a licensee has failed to comply with any of

the following provisions with sufficient

frequency so as to establish a pattern of

wrong doing on the part of the licensee:

* * *

(q) Conviction of a felony. (emphasis

supplied)

22. The evidence in this case established that Richard Borst, an officer

and a stockholder in, Dick's Auto Sales, Inc., has been convicted of a felony by

a court of competent jurisdiction. 1/

23. The record does not indicate that Richard Borst, or any person acting

at his direction, has failed to comply with any of the proscribed conduct

enumerated in Section 320.27(9), Florida Statutes, "with sufficient frequency so

as to establish a pattern of wrongdoing."

24. While the Department argues that it has discretion to suspend, fine or

revoke the license of Respondent in this case, the Department has provided no

legal authority for taking such actions when no "pattern of wrongdoing" has been

established. The statute must be given its plain and obvious meaning. Holly v.

Auld, 450 So.2d 217 (Fla. 1984). Under the clear wording of the statute, the

Department's authority to deny, suspend or revoke any license is dependent upon

proof of a pattern of wrongdoing on the part of the licensee. While in some

instances proof of conviction of certain felonies may be sufficient to establish

a pattern of wrongdoing, in this case the only evidence regarding the facts

surrounding the conviction indicate Borst engaged in a single purchase of stolen

goods. As such, Petitioner has failed to establish a "pattern of wrongdoing"

and, therefore, the Petitioner has not proven one of the essential elements for

suspending or revoking a license under Section 320.27(9), Florida Statutes

(1989).

25. The Department also contends that it has the authority under Section

320.27(12), Florida Statutes to impose a civil fine of up to $1000.00 for each

violation. Section 320.27 (12) provides:

CIVIL FINES: PROCEDURES- In addition to the

exercise of other powers provided in this

section, the Department may levy and collect

a civil fine, in an amount not to exceed

$1000.00 for each violation, against any

licensee if it finds that the licensee has

violated any provision of this section or has

violated any other law of the state related to

dealing in motor vehicles.

26. Section 320.27(12) does not specifically incorporate the list of

conduct delineated under Subsection (9). 2/ Absent an independent

incorporation of each of the individual items of subsection (9), the proper

statutory interpretation requires that a violation of Subsection (9) be

established (which as discussed above neccesarily requires the establishment of

a "pattern of wrongdoing") before the Department has authority to levy a fine.

Since no violation of subsection 320.27(9) has been established, the Petitioner

does not have authority under Section 320.27(12) to levy a fine.

27. In support of it contention that Respondent's license should be

revoked, Petitioner argues that Borst's conviction is related to the operation

of a motor vehicle dealership. Even if Petitioner has authority to take

disciplinary action against Respondent's license, there is no statutory or rule

authority for Petitioner's contention that a more severe penalty is justified if

the felony is related to the operation of the motor vehicle dealership. While

an agency has discretion with respect to the penalty to be imposed for an

established violation, that discretion must be applied based on the facts of the

particular case. The evidence presented in this de novo proceeding provided

only a limited factual background of the Borst's criminal conviction. The

evidence did establish that the Borst cooperated fully with the investigating

authorities and received a minimal sentence. His cooperation in the

investigation demonstrates that he is not beyond rehabilitation and, therefore,

permanent revocation would be unduly harsh absent further aggravating factors.

Permanent revocation of a license to engage in business is a harsh punishment

reserved for egregious cases. See, The Florida Bar vs. Davis, 361 So.2d 159

(Fla. 1978).

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

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of June, 1990.

ENDNOTES

1/ While the documents in the licensure file are somewhat ambiguous as to

whether the license was issued in the name of the Respondent corporation or to

Richard Borst, d/b/a Dick's Auto Sales, the parties stipulated prior to the

hearing and both parties indicate in their proposed recommended orders that the

license is in the name of Dick's Auto Sales. Petitioner has provided no

authority for the proposition that conviction of an officer and shareholder of a

corporation is adequate grounds for disciplining a license issued in the name of

the corporation. The wording of the statute appears to require that the

licensee be convicted before disciplinary action can be taken. There is a

significant legal question whether disciplinary action can be taken against a

license issued to a corporation based solely upon the acts of an officer and

shareholder of the corporation without any showing that the corporation itself

was involved. However, in view of the conclusions reached herein, that issue

need not be resolved in this case.

2/ The structure of this statute should be compared with other statutes where

the legislature clearly intended for an agency to be able to levy fines based on

conduct delineated in a previous subsection. See e.g., Section 471.033(1)(a)

incorporating Section 471.031.

APPENDIX TO RECOMMENDED ORDER

Both parties have submitted Proposed Recommended Orders. The following

rulings are directed to the proposed findings of fact contained in those

submittals.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact

of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

2. Adopted in substance in Findings of Fact 2.

3. Adopted in substance in Findings of Fact 4.

4. Adopted in substance in Findings of Fact 4.

5. Rejected as constituting legal argument

rather than a finding of fact.

6. Adopted in substance in Findings of Fact 6.

7. Adopted in substance in Findings of Fact 7.

8. Adopted in substance in Findings of Fact 8.

9. Adopted in substance in Findings of Fact 9.

10. Rejected as irrelevant.

11. The first sentence is adopted in substance

in Findings of Fact 10. The second sentence

is rejected as contrary to the weight of the

evidence. While Mr. Borst may not have

accurately filled out his renewal form, the

Hearing Officer finds that his testimony was

otherwise credible.

12. Rejected as argument rather than a finding

of fact.

13. Adopted in substance in Findings of Fact 2.

14. Rejected as unsubstantiated by the evidence.

While Mr. Borst's conviction was related to

the transportation of stolen motor vehicle

parts, the evidence did not establish how

those parts were utilized in Respondent's

business and/or the role Respondent played

in the criminal scheme.

15. Rejected as constituting argument.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact

of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Included in the preliminary statement and

also adopted in substance in Findings of

Fact 4.

2. Included in the preliminary statement and

also adopted in substance in Findings of

Fact 1.

3. Adopted in substance in Findings of Fact 3.

4. Adopted in substance in Findings of Fact 4.

5. Adopted in substance in Findings of Fact 12.

6. Adopted in substance in Findings of Fact

13.

7. Adopted in substance in Findings of Fact

14.

8. Adopted in substance in Findings of Fact

15.

COPIES FURNISHED:

Charles J. Brantley, Director

Division of Motor Vehicles

Room B439, Neil Kirkman Building

Tallahassee, Florida 32399-0500

Enoch Jon Whitney

General Counsel

Division of Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399-0500

Michael J. Alderman, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

Craig R. Wilson, Esquire

Crystal Tree Office Center

1201 U.S. Highway 1, Suite 315

North Palm Beach, Florida 33408-3581

=================================================================

AGENCY FINAL ORDERS

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES

DIVISION OF MOTOR VEHICLES,

Petitioner CASE NO.: 90-0175

vs.

DICK'S AUTO SALES, INC.,

Respondent.

____________________________/

FINAL ORDER

This matter is before the Department pursuant to s. 120.57(1)(b) 10, Fla.

Stats., for the purpose of considering the Hearing Officer's Recommended Order,

Petitioner's Exceptions To Recommended Order and Respondent's Exceptions To

Recommended Order, copies of which are attached hereto as Exhibits A, B and C

respectively. Authority to enter this Final Order is pursuant to the delegation

to the Executive Director, Rule 15-1.012 FAC, and his designation of the

undersigned.

Upon review of the Recommended Order, the Exceptions, and after a review of

the complete record in this case, the Department makes the following findings

and conclusions:

RULINGS ON EXCEPTIONS

1. Petitioner's Exceptions -

a. The Department accepts Petitioner's exceptions to Conclusions of Law 8

through 12 of the Recommended Order for the reasons stated in the written

exception.

b. The Department accepts Petitioner's exception to footnote 1 to

Conclusion of Law number 7 for the reasons set forth in the written exception*

2. Respondent's Exceptions -

The Department rejects Respondent's exceptions to paragraphs 9 and 10 of

the Findings of Fact. Those findings are based on competent substantial

evidence in the record. Specifically, there was an Information filed on or

before January 18, 1989, against Richard Borst. See Respondent's Exhibit 3 and

pages 71 and 76 of the transcript of hearing.

FINDINGS OF FACT

1. The Findings of Fact set forth in the Recommended Order are approved

and adopted and incorporated herein.

2. There is competent substantial evidence to support the findings of fact

of the Department.

CONCLUSIONS OF LAW

1. The Department has jurisdiction of this matter pursuant to ss.

120.57(1) and 320.27, Fla. Stats.

2. Paragraphs 1-7 of the Conclusions of Law set forth in the Recommended

Order are approved, adopted and incorporated herein, with the exception of

footnote 1 to paragraph 7. The Department modifies footnote 1 to conclude that

disciplinary action can be taken against a corporate licensee based upon the

acts of an officer and shareholder under the facts of this case. Here, Richard

Borst was both President and one of only two stockholders in Dick's Auto Sales,

Inc. Furthermore, his criminal conviction arose in connection with his purchase

of auto parts from a "chop shop", which is directly related to the corporate

licensee's business of dealing in used motor vehicles. Sections 320.27(3),

320.27(9) and 320.605, Fla. Stats. See also State v. Shouse, 177 So.2d 724

(Fla. 2d DCA, 1965) regarding corporate criminal liability.

3. The Department further concludes that Respondent has committed a

violation of s. 322.27 (9)(g), Fla. Stats., by virtue of the June 9, 1989,

felony conviction of its Chief Officer and Co-Stockholder, Richard Borst. This

is a serious offense involving transportation in interstate commerce from the

State of Connecticut to the State of Florida of motor vehicle parts of the value

of $5,000.00. When the applicable provisions of Chapter 322 are read in pari

materia, it is evident that the legislature authorized the Department to deny,

suspend or revoke a license based upon one felony conviction under the

circumstances presented by this case. See ss. 322.27(9)(s), 9(q), (3) and

320.605, Fla. Stats. See also Natelson v. Department of Insurance, 454

So.2d 31 (Fla 1st DCA, 1984), which held,

"Agencies are afforded wide discretion in the

interpretation of a statute which it administers

and will not be overturned on appeal unless

clearly erroneous. (citations omitted) The

reviewing court will defer to any interpretation

within the range of possible (e.s.)

interpretation. (citations omitted)" See also

s. 112.011 Fla. Stats.

PENALTY

Based upon the foregoing findings of fact and conclusions of law it is

hereby ORDERED and ADJUDGED that:

1. Respondent is guilty of a violation of s. 322.27(9)(q), Fla. Stats.

2. Respondent's motor vehicle dealer license is hereby revoked.

This penalty is appropriate based upon a review of the complete record and the

following reasons:

a. The seriousness of the offense as it relates the business of operating

a motor vehicle dealership in the context of s. 320.605, Fla. Stats.

b. The rejection of recommended Conclusions of Law 8 through 12 add

modification of footnote 1 to Conclusion of Law number 7.

c. The recognition that upon a showing of good cause and proof of

rehabilitation and compliance with s. 320.27(3), Fla. Stats., Respondent is

entitled to seek reinstatement of its license. Section 320.273, Fla. Stats.

Done and Ordered this __29__ day of August, 1990, in Tallahassee, Leon

County, Florida.

_________________________

CHARLES J. BRANTLEY, 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

__29__ day of August, 1990.

Copies furnished to:

Craig R. Wilson, Esquire

Crystal Tree Office Center

1201 U.S. Highway 1, Suite 315

North Palm Beach, Florida 33408-3581

Judson M. Chapman

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

J. Stephen Menton

Hearing Officer

Division of Administrative Hearings

DeSoto Building, 1230 Apalachee Parkway

Tallahassee, Florida, 32399-1550

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

DEPARTMENT OF HIGHWAY

SAFETY AND MOTOR VEHICLES

DIVISION OF MOTOR VEHICLES,

Petitioner, CASE NO.: 90-0175

vs.

DICK'S AUTO SALES, INC.,

Respondent.

____________________________/

AMENDED FINAL ORDER

This matter is before the Department pursuant to s. 120.57(1)(b) 10,

Fla. Stats., for the purpose of considering the Hearing Officer's Recommended

Order, Petitioner's Exceptions To Recommended Order and Respondent's Exceptions

To Recommended Order, copies of which are attached hereto as Exhibits A, B and C

respectively. Authority to enter this Final Order is pursuant to the delegation

to the Executive Director, Rule 15-1.012 FAC, and his designation of the

undersigned.

Upon review of the Recommended Order, the Exceptions, and after a review of

the complete record in this case, the Department makes the following findings

and conclusions:

RULINGS ON EXCEPTIONS

1. Petitioner's Exceptions -

a. The Department accepts Petitioner's exceptions to Conclusions of Law 8

through 12 of the Recommended Order for the reasons stated in the written

exception.

b. The Department accepts Petitioner's exception to

footnote 1 to Conclusion of Law number 7 for the reasons set forth in the

written exception.

2. Respondent's Exceptions -

The Department rejects Respondent's exceptions to paragraphs 9 and 10 of

the Findings of Fact. Those findings are based on competent substantial

evidence in the record. Specifically, there was an Information filed on or

before January 18, 1989, against Richard Borst. See Respondent's Exhibit 3 and

pages 71 and 76 of the transcript of hearing.

FINDINGS OF FACT

1. The Findings of Fact set forth in the Recommended Order are approved

and adopted and incorporated herein.

2. There is competent substantial evidence to support the findings of fact

of the Department.

CONCLUSIONS OF LAW

1. The Department has jurisdiction of this matter pursuant to 55.

120.57(1) and 320.27, Fla. Stats.

2. Paragraphs 1-7 of the Conclusions of Law set forth in the Recommended

Order are approved, adopted and incorporated herein, with the exception of

footnote 1 to paragraph 7. The Department modifies footnote 1 to conclude that

disciplinary action can be taken against a corporate licensee based upon the

acts of an officer and shareholder under the facts of this case. Here, Richard

Borst was both President and one of only two stockholders in Dick's Auto Sales,

Inc. Furthermore, his criminal conviction arose in connection with his purchase

of auto parts from a "chop shop", which is directly related to the corporate

licensee's business of dealing in used motor vehicles. Sections 320.27(3),

320.27(9) and 320.605, Fla. Stats. See also State v. Shouse, 177 So.2d 724

(Fla. 2d DCA, 1965) regarding corporate criminal liability.

3. The Department further concludes that Respondent has committed a

violation of s. 322.27 (9)(q), Fla. Stats., by virtue of the June 9, 1989,

felony conviction of its Chief Officer and Co-Stockholder, Richard Borst.

This is a serious offense involving transportation in interstate commerce from

the State of Connecticut to the State of Florida of motor vehicle parts of the

value of $5,000.00. When the applicable provisions of Chapter 322 are read in

pari materia, it is evident that the legislature authorized the Department to

deny, suspend or revoke a license based upon one felony conviction under the

circumstances presented by this case. See ss. 322.27(9)(s), 9(q), (3) and

320.605, Fla. Stats. See also Natelson v. Department of Insurance, 454

So.2d 31 (Fla 1st DCA, 1984), which held,

"Agencies are afforded wide discretion in the

interpretation of a statute which it administers

and will not be overturned on appeal unless

clearly erroneous. (citations omitted) The

reviewing court will defer to any interpretation

within the range of possible (e.s.)

interpretation. (citations omitted)" See also

s. 112.011 Fla. Stats.

PENALTY

Based upon the foregoing findings of fact and conclusions of law it is

hereby ORDERED and ADJUDGED that:

1. Respondent is guilty of a violation of s. 322.27(9)(q), Fla. Stats.

2. Respondent's motor vehicle dealer license is hereby revoked.

This penalty is appropriate based upon a review of the complete record and the

following reasons:

a. The seriousness of the offense as it relates the business of operating

a motor vehicle dealership in the context of s. 320.605, F1a. Stats.

b. The rejection of recommended Conclusions of Law 8 through 12 and

modification of footnote 1 to Conclusion of Law number 7.

c. The recognition that upon a showing of good cause and proof of

rehabilitation and compliance with s. 320.27(3), Fla. Stats., Respondent is

entitled to seek reinstatement of its license. Section 320.273, Fla. Stats.

Done and Ordered this __13__ day of September, 1990, in Tallahassee, Leon

County, Florida.

_________________________

CHARLES J. BRANTLEY, 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

__13__ day of September,

1990.

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 Rule 9.110, Rules of Appellate Procedure.

Copies furnished to:

Craig R. Wilson, Esquire

Crystal Tree Office Center

1201 U.S. Highway 1, Suite 315

North Palm Beach, Florida 33408-3581

Michael J. Alderman

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

J. Stephen Menton

Hearing Officer

Division of Administrative Hearings

DeSoto Building, 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550