91-000415
Department Of Highway Safety And Motor Vehicles vs.
Bernard J. Haney, D/B/A Southern Auto Sales
Status: Closed
Recommended Order on Tuesday, August 27, 1991.
Recommended Order on Tuesday, August 27, 1991.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF HIGHWAY )
12SAFETY AND MOTOR VEHICLES, )
17DIVISION OF MOTOR VEHICLES, )
22)
23Petitioner, )
25)
26vs. ) CASE NO. 91-0415
31)
32BERNARD J. HANEY, d/b/a )
37SOUTHERN AUTO SALES, )
41)
42Respondent. )
44____________________________)
45RECOMMENDED ORDER
47Pursuant to notice, the Division of Administrative Hearings by its duly
58designated Hearing Officer, William R. Cave, held a formal hearing in the above-
71captioned matter on June 26, 1991 in Lakeland, Florida.
80APPEARANCES
81For Petitioner: Michael J. Alderman, Esquire
87Assistant General Counsel
90Department of Highway Safety
94and Motor Vehicles
97Neil Kirkman Building, Rm. A432
102Tallahassee, Florida 32399-0504
105For Respondent: Charles R. Mayer, Esquire
111Post Office Box 267
115 Highland City, Florida 3384
120STATEMENT OF THE ISSUES
124Whether Respondent's independent motor vehicle dealer license should be
133revoked or suspended under the facts and circumstances of this case.
144PRELIMINARY STATEMENT
146By an administrative complaint dated December 17, 1990 and filed with the
158Division of Administrative Hearings on January 18, 1991, the Petitioner,
168Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles
179(Department) charged the Respondent, Bernard J. Haney d/b/a Southern Auto Sales
190with violating Section 320.27(9)(b) and (q), Florida Statutes, and as grounds
201therefor alleged: (a) that Respondent had been arrested several times under his
213name and the name of William J. Butler; (b) that Respondent while using the name
228William J. Butler was convicted of uttering a forged instrument, a felony, and
241sentenced to four years confinement; and (c) that Respondent failed to
252acknowledge or explain the arrests, conviction or use of fictitious personal
263identification at anytime during the initial licensure or renewal application
273process. Haney filed a Request For Administrative Proceeding with the
283Department which, along with the Administrative Complaint, was referred to the
294Division of Administrative Hearings for formal hearing, and this proceeding
304ensued.
305At the hearing, the Department presented the testimony of Neil C.
316Chamberlin, Nathan Dawson and Gary Floyd (Floyd is not listed as a witness in
330the Index of the transcript, however, he was called as the Department's witness
343and his testimony begins on page 156 in Volume II of the transcript).
356Department's exhibits 1, 2, 3 and 4 were received into evidence. Respondent
368testified in his own behalf and presented the testimony of Carolyn McDaniel.
380Respondent's composite exhibit 1 was received into evidence. Respondent's
389Motion to Dismiss presented at the close of the Department's case in chief was
403denied.
404A transcript of this proceeding was filed with the Division of
415Administrative Hearings on July 15, 1991. Additional time was allowed the
426Respondent for filing his proposed findings of fact and conclusions of law and
439such time added to the time within which the Recommended Order was to be filed.
454The parties timely submitted their proposed findings of fact and conclusions of
466law within the extended time frame. A ruling on each of the proposed findings
480of fact have been made as reflected in an Appendix to the Recommended Order.
494FINDINGS OF FACT
497Upon consideration of the oral and documentary evidence adduced at the
508hearing, the following relevant findings of fact are made:
5171. On November 16, 1987, the Respondent signed, under oath, an application
529for an independent motor vehicle dealer license for the business name of
541Southern Auto Sales which was submitted to the Department, and, based upon that
554application, the Department issued an independent motor vehicle dealer license,
564number 7VI-011359, to Respondent d/b/a Southern Auto Sales on November 30, 1987.
5762. In the application referred to above, Respondent answered no to the
588question, Has the applicant or any partner or corporate officer or director:
600A. Been arrested on a felony or equivalent charge
609anywhere?;
610B. Been convicted of a felony or equivalent anywhere?
6193. In 1988, 1989, and 1990, Respondent submitted to the Department a Short
632Form Application, commonly referred to as a renewal application, and the
643Department renewed license number 8VI-011359 in 1988, 9VI-011359 in 1989, and
6540VI-011359 in 1990. The number before the prefix VI indicates the year of
667issuance.
6684. Respondent signed each of these renewal applications under oath wherein
679the affirmation stated " . . . the information contained in this application is
692true and correct and that nothing has occurred since I filed my last application
706for a license or application for renewal of said license, as the case may be,
721which would change the answers given in such previous application."
731Additionally, the instructions for the renewal application advised the applicant
741that the short form could be used if the applicant was currently licensed and,
755among other things, there were no changes in the applicant's personal background
767such a criminal conviction.
7715. Respondent, currently holds an independent motor vehicle dealer
780license, number 1VI-011359, issued by the Department on May 1, 1991.
7916. Respondent, using the name William J. Butler, was arrested and charged
803in December 1977 with uttering a forgery. The Respondent pled guilty to the
816charge of uttering a forgery in April 1978 before the Circuit Court, Harrison
829County, Mississippi and was sentenced to four years in the Mississippi
840Department of Corrections.
8437. In 1978, the Respondent, using the name William J. Butler, was arrested
856and charged with uttering a forgery. Respondent was subsequently convicted and
867sentenced by the Circuit Court, Jackson County, Mississippi to four years in the
880Mississippi Department of Corrections, said sentence to run concurrently with
890the sentence imposed by the Circuit Court, Harrison County, Mississippi.
9008. William J. Butler and Bernard J. Haney, the Respondent in this case,
913are one in the same person.
9199. On October 25, 1979, after serving only approximately 1 1/2 years of
932the two four-year sentences, Respondent was paroled by the Mississippi Parole
943Board with conditions for supervision made a part of the parole.
95410. In 1981 Respondent sought and received treatment for alcoholism,
964having been an alcoholic for a period of twenty years. After treatment, with
977the help of Alcoholics' Anonymous, Respondent has maintained a life of sobriety.
98911. In November 1988 a Warrant for Retaking a Paroled Prisoner was issued
1002against Respondent, and he was recommitted to the Mississippi Department of
1013Corrections for "absconding supervision" of his parole. However, with the help
1024of some "new" friends, gained after his treatment for alcoholism, Respondent was
1036incarcerated for only a short period, and was "honorably discharged" from the
1048Mississippi Department of Corrections on December 20, 1984.
105612. The Harrison County charge of uttering a forgery was in connection
1068with a check for $169.92, and the Jackson County charge of uttering a forgery
1082was in connection with a check for $139.36.
109013. There is nothing stated in the Discharge Certificate that should have
1102led the Respondent to believe or understand that his criminal record had been
1115expunged and his rights restored upon receiving his "honorable discharge" from
1126the Mississippi Department of Corrections in December 1984. However,
1135considering the circumstances surrounding his commitment in the first place, his
1146recommitment in 1984 and his immediate release thereafter, Respondent's
1155testimony that such was his belief and understanding is credible.
116514. There is insufficient evidence to show that at the time of his initial
1179application for licensure in 1987 or at the time of his renewal applications in
11931988, 1989 and 1990, that Respondent acted fraudulently or willfully
1203misrepresented the facts when he answered no to the questions concerning any
1215prior arrests or convictions for a felony.
122215. After the release in 1979 and up to the date of his initial
1236application for licensure, the Respondent's criminal record is clear except for
1247the arrest in 1984 where the charges were dropped but the arrest resulted in his
1262recommitment. From the date of his initial application until the date of the
1275hearing the Respondent's criminal record is clear except for an arrest in 1990
1288concerning charges of tampering with an odometer. Apparently, these charges
1298have been dropped and the matter handled civilly through the Polk County Citizen
1311Dispute Settlement Center.
1314CONCLUSIONS OF LAW
131716. The Division of Administrative Hearings has jurisdiction over the
1327parties to, and the subject matter of, this proceeding pursuant to Section
1339120.57(1), Florida Statutes.
134217. Section 320.27(9), Florida Statutes, empowers the Department to
1351suspend or revoke the license of the Respondent upon proof that he has failed to
1366comply with any of the enumerated acts listed in Section 320.27(9)(a) through
1378(5), Florida Statutes, with sufficient frequency so as to establish a pattern of
1391wrongdoing on the part of the Respondent.
139818. The administrative complaint charges Respondent with violating Section
1407320.27(9)(b) and (q), Florida Statutes, which provides as follows:
1416(b) Commission of fraud or willful
1422misrepresentation in application for or in
1428obtaining a license.
1431. . . .
1435(q) Conviction of a felony.
144019. In disciplinary proceedings, the burden is upon the regulatory agency
1451to establish facts upon which its allegations of misconduct are based by clear
1464and convincing evidence. Ferris v. Turlington, 510 So.2d 293 (Fla. 1987). In
1476the instant case the Department has clearly shown that Respondent was charged,
1488arrested and convicted on two separate charges of uttering a forgery which is a
1502felony and sentenced to two four-year sentences. Also, the Department has
1513clearly shown that Respondent failed to advise the Department of his arrests and
1526the felony convictions in his initial application in 1987 wherein he obtained an
1539independent motor vehicle dealer license. What the Department has not clearly
1550shown is that: (a) the Respondent acted fraudulently or willfully misrepresented
1561facts in filing his initial application for licensure and renewals thereof; or
1573(b) the Respondent's failure to comply with the provisions of Section
1584320.27(9)(b) and (q), Florida Statutes, was with such sufficient frequency so as
1596to establish a pattern of wrongdoing on his part. The Department has failed to
1610sustain its burden of proof.
1615RECOMMENDATION
1616Having considered the foregoing findings of fact and conclusions of law, it
1628is,
1629RECOMMENDED that the Department enter a Final Order dismissing the
1639administrative complaint filed herein.
1643DONE and ENTERED this 27th day of August, 1991, in Tallahassee, Florida.
1655_________________________________
1656WILLIAM R. CAVE
1659Hearing Officer
1661Division of Administrative Hearings
1665The DeSoto Building
16681230 Apalachee Parkway
1671Tallahassee, FL 32399-1550
1674(904) 488-9675
1676Filed with the Clerk of the
1682Division of Administrative Hearings
1686this 27th day of August, 1991.
1692APPENDIX TO RECOMMENDED ORDER
1696The following constitutes my specific rulings pursuant to Section
1705120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted
1717by the parties in the case.
1723Rulings on Proposed Finding of Fact
1729Submitted by the Petitioner
17331. - 9. Adopted in Findings of Fact 5, 6, 7, 8, 1, 1, 2, 3, and 4,
1751respectively.
175210. Stated more as an argument than a finding of fact, otherwise rejected
1765since there was no substantial competent evidence in the record to prove that
1778there was fraudulent or willful misrepresentation of the facts in the
1789application.
1790Rulings on Proposed Findings of Fact
1796Submitted by the Respondent
1800Respondent's Proposed Recommended Order is divided into three principal
1809parts: (a) Proposed Findings of Fact; (b) Comments on Testimony and Evidence;
1821and (c) Proposed Conclusions of Law. Only the Proposed Findings of Fact will be
1835addressed to in this Appendix.
18401. Adopted in substance in Finding of Fact 1.
18492. - 3. Unnecessary.
18534. Adopted in substance in Finding of Fact 1.
18625. - 7. Covered in Preliminary Statement.
18698. Conclusion of Law.
18739. Covered in the Preliminary Statement, otherwise unnecessary.
188110. Covered in the Preliminary Statement.
188711. - 12. Covered in the Preliminary Statement, otherwise unnecessary or
1898not material or relevant.
1902COPIES FURNISHED:
1904Michael J. Alderman, Esquire
1908Assistant General Counsel
1911Department of Highway Safety
1915and Motor Vehicles
1918Neil Kirkman Building, Rm. A432
1923Tallahassee, FL 32399-0504
1926Charles R. Mayer, Esquire
1930Post Office Box 267
1934Highland City, FL 33846
1938Leonard R. Mellon, Executive Director
1943Department of Highway Safety
1947and Motor Vehicles
1950Neil Kirkman Building
1953Tallahassee, FL 32399-0500
1956Enoch Jon Whitney, General Counsel
1961Department of Highway Safety
1965and Motor Vehicles
1968Neil Kirkman Building
1971Tallahassee, FL 32399-0500
1974Charles J. Brantley, Director
1978Division of Motor Vehicles
1982Neil Kirkman Building
1985Tallahassee, FL 32399-0500
1988NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1994ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED
2006ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT
2020WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT
2032WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL
2044ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS
2057TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE
2069FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.
2082=================================================================
2083AGENCY FINAL ORDER
2086=================================================================
2087STATE OF FLORIDA
2090DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES
2097DEPARTMENT OF HIGHWAY CASE NO.: 91-0415
2103SAFETY AND MOTOR VEHICLES
2107DIVISION OF MOTOR VEHICLES,
2111Petitioner,
2112vs.
2113BERNARD J. HANEY d/b/a/
2117SOUTHERN AUTO SALES,
2120Respondent.
2121___________________________/
2122FINAL ORDER
2124This matter is before the Department pursuant to s. 120.57(1)(b) 10, Fla.
2136Stat., for the purpose of considering the Hearing Officer's Recommended Order
2147and Petitioner's Exceptions To Recommended Order. Authority to enter this Final
2158Order is pursuant to the delegation to the Executive Director, Rule 15-1.012
2170F.A.C., and his designation of the undersigned.
2177Upon review of the Recommended Order, the Exceptions, and after a review of
2190the complete record in this case, the Department makes the following findings
2202and conclusions:
2204RULINGS ON EXCEPTIONS
22071. The Department accepts Petitioner's Exception 1. Based upon a review
2218of the complete record, and particularly pages 180-197 and 211-216 of the
2230transcript of hearing, the Department finds that the second sentence of Finding
2242of Fact 13 is not supported by competent substantial evidence and is therefore
2255rejected. Haney testified that he assumed everything had been dropped (T-184)
2266and that no one told him he was not convicted (T-195). The discharge
2279certificate (part of Pet. Ex. 4) that Haney received in December, 1984, states
2292that he was convicted in Circuit Court in Harrison and Jackson County and
2305sentenced to four years (T-215). This testimony, together with findings 6, 7,
231711 and 12 provide competent substantial evidence to support the first sentence
2329of finding paragraph 13, but not the second sentence, which is hereby rejected.
23422. The Department accepts Petitioner's Exception 2. Based
2350upon a review of the complete record, the Department rejects
2360Finding of Fact 14 and substitutes in its place the following:
237114. There is sufficient evidence to show
2378that at the time of his initial application
2386for licensure in 1987 and at the time of his
2396renewal applications in 1988, 1989 and 1990,
2403that Respondent acted fraudulently or
2408wilfully misrepresented the facts when he
2414answered no to the questions concerning any
2421prior arrests or convictions for a felony.
2428The Department accepts the construction of "willful" as set forth in State
2440of Florida, Department of Highway Safety and Motor Vehicles v. Taylor, 456 So.
24532d 550, 552 (Fla. 3d DCA, 1984). The rejection of the second sentence of
2467Finding of Fact 13 eliminates the basis for any excuse of Respondent in failing
2481to disclose his prior arrest and conviction. Thus, he acted consciously and
2493wilfully in completing the application and renewal forms without the necessary
2504disclosure.
25053. The Department accepts Petitioner's exception 3 regarding the
2514Conclusions of Law. The Department concludes that Respondent wilfully
2523misrepresented facts in filing his initial application for licensure and
2533subsequent renewals.
2535Furthermore, the Department concludes that Respondent did so with
2544sufficient frequency so as to establish a pattern of wrongdoing. Respondent
2555engaged in such a pattern by filing renewals for 1988, 1989 and 1990, following
2569his initial non-disclosure in 1987.
2574In addition, the Department concludes that the two felony convictions
2584incurred by Respondent adequately establish a pattern of wrongdoing as
2594contemplated by s. 320.27(9) Fla. Stat. The Department relies on the provisions
2606of ss. 320.27(9)(s), 320.27(3) and 320.605 Fla. Stat., in concluding that these
2618convictions are sufficient for license revocation, based upon the seriousness
2628of felony conduct and the need to protect the public welfare by unscrupulous
2641motor vehicle dealers. A similar determination was made by the Department
2652involving a single conviction in Department of Highway Safety and Motor Vehicles
2664v. Dick's Auto Sales, Case No.: 90-0175, Amended Final Order entered August 29,
26771990, Supplement entered September 24, 1990.
2683FINDINGS OF FACT
26861. Except as modified above, Findings of Fact set forth in the Recommended
2699Order are approved and adopted and incorporated herein.
27072. There is competent substantial evidence to support the
2716Findings of Fact of the Department.
2722CONCLUSIONS OF LAW
27251. The Department has jurisdiction of this matter pursuant to ss,
2736120.57(1) and 320.27, Fla. Stat.
27412. Paragraphs 1-3 of the Conclusions of Law set forth in the Recommended
2754Order are approved, adopted and incorporated herein.
27613. The Department accepts paragraph 4 of the Conclusion of Law, except for
2774the last two sentences thereof on page 8 of the Recommended Order, as determined
2788by the ruling of Petitioner's exception 3.
2795PENALTY
2796Based upon the foregoing Finding of Fact and Conclusions of Law it is
2809hereby ORDERED and ADJUDGED that:
28141. Respondent is guilty of a violation of s. 322.27(9)(b) and (q), Fla.
2827Stat.
28282. Respondent's motor vehicles dealer license is hereby revoked. This
2838penalty is appropriate based upon a review of the complete record and the
2851following reasons:
2853a. The seriousness of the underlying offenses and the continued
2863pattern of their misrepresentation, as it relates to the business of operating a
2876motor vehicle dealership in the context of s. 320.605, Fla. Stat.
2887b. The rejection of the second sentence of Finding of Fact 13 and
2900modification of Finding 14.
2904c. The recognition that upon a showing of good cause and proof of
2917rehabilitation and compliance with s. 320.27(3), Fla. Stat., Respondent is
2927entitled to seek reinstatement of its license. Section 320.273, Fla. Stat.
2938DONE AND ORDERED this __6__ day of __ January__, 1992, in
2949Tallahasseee, Leon County, Florida.
2953__________________________________
2954CHARLES J. BRANTLEY, Director
2958Division of Motor Vehicles
2962Department of Highway Safety
2966and Motor Vehicles
2969Neil Kirkman Building
2972Tallahassee, Florida 32399-0504
2975NOTICE OF APPEAL RIGHTS
2979Judicial review of this order may be had pursuant to section 120.68, Florida
2992Statutes, in the District Court of Appeal for the First District, State of
3005Florida, or in any other District Court Appeal of this state in an appellate
3019district where a party resides. In order to initiate such review, one copy of
3033the Notice of Appeal must be filed with the Department and the other copy of
3048the Notice of Appeal, together with the filing fee, must be filed with the
3062court within thirty days of the filing date of this order as set out above,
3077pursuant to Rule 9.110, Rules of Appellate Procedure.
3085Copies furnished to:
3088Charles R. Mayer, Esquire
3092Post Office Box 267
3096Highland City, Florida 33846
3100Michael J. Alderman, Esquire
3104Assistant General Counsel
3107Department of Highway Safety
3111and Motor Vehicles
3114Neil Kirkman Building, A-342
3118Tallahassee, Florida 32399-0504
3121William R, Cave
3124Hearing Officer
3126Division of Administrative Hearings
3130Desoto Building, 1230 Apalachee Parkway
3135Tallahassee, Florida 32399-1550
- Date
- Proceedings
- Date: 01/09/1992
- Proceedings: Final Order filed.
- Date: 08/09/1991
- Proceedings: Proposed Recommended Order (1 binder) TAGGED filed. (From Charles R.Mayer)
- Date: 08/07/1991
- Proceedings: Letter to C. R. Mayer from WRC sent out. (RE: Proposed Findings of Fact and Conclusions of Law due dates).
- Date: 08/06/1991
- Proceedings: Letter to WRC from Charles R. Mayer (re: when to prepare Proposed Order w/Proposed Findings) filed.
- Date: 07/26/1991
- Proceedings: (Petitioner) Proposed Recommended Order filed. (From Michael J. Alderman)
- Date: 07/15/1991
- Proceedings: Transcript (volumes I & II) filed.
- Date: 06/28/1991
- Proceedings: Letter to Parties of Record from WRC sent out. (Re: Petitioner's Exhibit 3 & Composite Exhibit 1).
- Date: 06/28/1991
- Proceedings: Post-Hearing Order sent out.
- Date: 06/27/1991
- Proceedings: CASE STATUS: Hearing Held.
- Date: 06/26/1991
- Proceedings: (Petitioner) Motion For Imposition of Sanctions; Respondent's Response to First Request for Admissions; Petitioner's First Request for Admissions & attachments filed. (From Michael J. Alderman)
- Date: 06/24/1991
- Proceedings: (Petitioner) Motion For Imposition of Sanctions w/Exhibits 1&2 filed.(From Michael J. Alderman)
- Date: 05/29/1991
- Proceedings: Order Compelling Answers to Interrogatories sent out.
- Date: 05/16/1991
- Proceedings: Petitioners Motion to Compel Answers to Interrogatories filed.
- Date: 05/10/1991
- Proceedings: Petitioner's Motion to Compel Answers to Interrogatories filed. (FromMichael J. Alderman)
- Date: 04/30/1991
- Proceedings: Order sent out. (Petitioner's Motion for Official Recognition granted).
- Date: 04/15/1991
- Proceedings: Notice of Serving Petitioner`s Answers to Respondent`s First Interrogatories and Response to Respondent`s Request to Produce; Motion For Official Recognition & attachments filed. (From Michael J. Alderman)
- Date: 04/05/1991
- Proceedings: Order sent out. (respondent's motion to strike DENIED)
- Date: 04/02/1991
- Proceedings: Objection to Interrogatories and Request for Admissions and Motion to Strike filed.
- Date: 03/21/1991
- Proceedings: Petitioners Response to Motion to Strike filed.
- Date: 03/19/1991
- Proceedings: Order of Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 6/26/91; at 9:00am; in Lakeland)
- Date: 03/18/1991
- Proceedings: (Petitioner) Motion for Continuance filed.
- Date: 03/04/1991
- Proceedings: cc: Letter to C. Mayer from M. Alderman (re: admissions, interrogatories & production of documents) filed.
- Date: 02/22/1991
- Proceedings: Petitioners Motion to Shorten Time for Response to Discovery; Petitioners First Request to Produce; Notice of Service of Interrogatories; First Interrogatories to Respondent; Petitioners First Request for Admissions filed.
- Date: 02/14/1991
- Proceedings: (petitioner) Response to Initial Order filed.
- Date: 02/12/1991
- Proceedings: Notice of Hearing sent out. (hearing set for March 15, 1991: 9:00 am: Lakeland)
- Date: 02/01/1991
- Proceedings: (Respondent) Response to Initial Order filed. (From Charles R. Mayer)
- Date: 01/31/1991
- Proceedings: (Petitioner) Notice of Appearance filed. (From Michael J. Alderman)
- Date: 01/23/1991
- Proceedings: Initial Order issued.
- Date: 01/18/1991
- Proceedings: Agency referral letter; Administrative Complaint; Request for Administrative Proceeding filed.
Case Information
- Judge:
- WILLIAM R. CAVE
- Date Filed:
- 01/18/1991
- Date Assignment:
- 01/23/1991
- Last Docket Entry:
- 01/09/1992
- Location:
- Lakeland, Florida
- District:
- Middle
- Agency:
- ADOPTED IN PART OR MODIFIED