05-001157 Department Of Highway Safety And Motor Vehicles vs. Eurotech Automotive Engineers, Inc. Status: Closed Recommended Order on Thursday, August 18, 2005.

Summary: Fifteen violations of rules and statutes provide sufficient clear and convincing evidence for the revocation of Respondent`s license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1157

)

EUROTECH AUTOMOTIVE )

ENGINEERS, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) conducted a final hearing in the

above - styled matter on June 2, 2005, in Jacksonville, Florida.

The following appearances were entered:

APPE ARANCES

For Petitioner: Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399

For Respondent: Sudarshan K. Kuthiala, pro se

2961 Bernice Drive

Jacksonville, Florida 32207

STATEMENT OF THE ISSUES

The primary issues for determination are whether Respondent

committed a myriad of violations of Section 320.27, Florida

Statutes, which provides certain requirements applicable to

motor vehicle dealers. The violations alleged to have been

committed by Respondent are inclusive of failures to dis play a

consumer sales window form, to keep certain records of purchases

and sales, to keep proper records of temporary tags, and not

possessing required proper proof of ownership of two vehicles.

In the event that Respondent committed these violations, an

additional issue is what administrative penalty should be

imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 18, 2005,

Petitioner alleged that Respondent had violated various

proscriptions applicable to motor vehicle dealers cont ained in

Section 320.27, Florida Statutes.

Respondent elected to dispute the allegations contained in

the Administrative Complaint. Consequently, Petitioner referred

the matter to DOAH on March 28, 2005, for the conduct of these

formal administrati ve proceedings.

At the final hearing, Petitioner presented testimony of one

witness and three exhibits which were admitted into evidence.

Respondent testified in his own behalf and submitted ten

exhibits, which were admitted into evidence.

A one - volume T ranscript of the final hearing was filed on

August 1, 2005. Both parties filed Proposed Recommended Orders,

which have been considered in the preparation of this

Recommended Order.

All references to Florida Statutes are to the 2004 edition

unles s otherwise noted.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the business of buying, selling, or dealing in motor vehicles or

offering or displaying motor vehicles for sale.

2. Respondent is, and has been at all times material

hereto, a licensed independent motor vehicle dealer in Florida,

having been issued license number VI - 13051. Petitioner issued

the license based upon an application signed by Sudarshan

Kuthiala, as President. Respondent's address of record is 589 5

St. Augustine Road, Suite No. 8, Jacksonville, Florida 32207.

3. Respondent's p resident is Sudarshan Kuthiala.

4. On or about March 12, 2004, Petitioner's compliance

examiner conducted an annual records inspection of Respondent's

dealership. The p urpose of that inspection was to determine

whether the dealership was complying with statutory and rule

requirements. Arrangements to conduct the inspection were made

at least a week ahead of time.

5. At the time of the March 12, 2004 inspection, the

compliance examiner found that Respondent did not have the

"Buyer's Guide" required by federal law and known as a “consumer

sales window form,” properly displayed on a vehicle, a 1995

Nissan, Vehicle Identification Number (VIN) 1N6SD16S25C386012,

being off ered for sale by Respondent.

6. Also, during the March 12, 2004 inspection, the

compliance examiner reviewed five purchases and sales of motor

vehicles made by Respondent. The examiner discovered that

records of two of the vehicles involved did not co ntain any

documentation of the method or proof of purchase or the required

odometer disclosure statement at time of acquisition. Another

of the vehicles did not have the odometer disclosure statement

upon its disposition.

7. An examination during the March 12, 2004 inspection of

Respondent's temporary tag log found that the log was

incomplete. Respondent's temporary tag log did not include the

name and address of the person to whom a temporary tag for a

vehicle had been assigned.

8. A follow - up in spection of Respondent's dealership was

conducted on June 23, 2004. An appointment for that inspection

was made at least one week ahead of time.

9. In the course of that June 23, 2004 inspection,

Petitioner's examiner discovered Respondent did not disp lay the

required "Buyer's Guide" or “consumer sales window form”

required by federal law on a 1992 Mercury automobile with VIN

1MEPM6043NH616615, being offered by Respondent for sale.

Further, Respondent's records did not contain the odometer

disclosure s tatement of that vehicle when it was acquired.

Additionally, Respondent did not have a title or other proof of

ownership of the 1992 Mercury automobile.

10. During the June 23, 2004 inspection, Petitioner's

examiner also discovered that records of thr ee purchases and

sales of motor vehicles made by Respondent were deficient.

Records for two of the vehicles did not have the method or proof

of purchase or odometer disclosure statement upon acquisition.

Records for one of the vehicles did not have the r equired

odometer disclosure statement upon disposition of the vehicle.

11. The June 23, 2004 inspection also revealed that

Respondent's temporary tag log was incomplete. The log did not

reveal the name and address of a person to whom a temporary ta g

was issued or the vehicle identification number of the vehicle

for which the temporary tag was issued.

12. Following both of the inspections recounted above,

neither Sudarshan Kuthiala nor anyone else on behalf of

Respondent offered to provide the mi ssing records or account for

them. In the course of attendance at training school for

dealers, Sudarshan Kuthiala was informed of the required forms

and the process for their preparation. Also, Respondent's

records have been inspected in the past and rec ordkeeping

requirements further explained to Kuthiala.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat.

14. Because Respo ndent is subject to penal sanctions in

this proceeding, i.e. , the imposition of an administrative

penalty, Petitioner has the burden of proving by clear and

convincing evidence the specific allegations in the

Administrative Complaint. See , e.g. , Departmen t of Banking and

Finance v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

15. Petitioner has statutory authority to suspend or

revoke motor vehicle dealer licenses. § 320.27(9), Fla. Stat.

Further, with regard to violations of state or federal la w

related to dealing in motor vehicles, Petitioner may impose a

fine of up to $1,000 for each such violation, inclusive of

administrative rule violations. § 320.27(12), Fla. Stat.

16. A “Buyer’s Guide” must be displayed prominently on any

used vehi cle offered for sale to a consumer. Petitioner has

proven by clear and convincing evidence that Respondent did not

display such a document, known as a “consumer sales window

form,” on two vehicles offered for sale, a necessary action for

compliance with f ederal law. 15 U.S.C. s. 2304, 16 C.F.R. part

455. Respondent’s claim that such a display arouses suspicions

in the minds of potential purchasers is not a persuasive

argument or defense for this violation. Such violation is a

ground for revocation or sus pension of Respondent’s license.

§ 320.27(9)(b)(17), Fla. Stat.

17. Petitioner has provided clear and convincing evidence

of four instances of failure by Respondent to establish and

maintain a written record of vehicles acquired for sale. Such

f ailure is a violation of Florida Administrative Code Rule 15C -

7.002(3), and Section 320.27(16) and (17), Florida Statutes, for

which a license can be suspended or revoked.

18. Respondent failed in six instances to maintain copies

of odometer disclo sure statements for vehicles, which it sold, a

violation of Florida Administrative Code Rule 15C - 7.002(4).

19. Clear and convincing evidence also establishes one

instance where Respondent did not have in its possession a duly

assigned certificate of title or other indicia of ownership of a

motor vehicle offered for sale, a violation for which suspension

or revocation of license may be imposed by Petitioner.

§ 320.27(9)(b)16 - 17 and Fla. Admin. Code R. 15C - 7.002(5) .

20. Respondent failed in two instances to maintain

temporary tag logs showing the name and address of persons to

whom tags were issued. Also missing was the applicable VIN

number for the motor vehicle involved. This is a violation for

which a license may be revoked or suspended. § 320.27(9)(b)16 -

17, Fla. Stat.

21. In total, Petitioner has provided clear and convincing

evidence of 15 separate violations of statute or administrative

rule committed by Respondent for which fines totaling $15,000

could be levied in accordance wit h provisions of Section

320.27(12), Florida Statutes. Respondent is guilty of all eight

counts of the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED t hat Petitioner enter a final order revoking

Respondent’s license.

DONE AND ENTERED this 18th day of August, 2005, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 18th day of August, 2005.

COPIES FURNI SHED :

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399

Sudarshan K. Kuthiala

2961 Bernice Drive

Jacksonville, Florida 32207

Fre d O. Dickinson, III, Executive Director

Department of Highway Safety

and Motor Vehicle

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

Enoch Jon Whitney, General Counsel

Department of Highway Safety

and Motor Vehicle

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Fl or ida 32399 - 0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.