05-004194 Department Of Agriculture And Consumer Services vs. Dewiott Mcduffie, D/B/A Dixie Transfer The Movers, A/K/A The Movers, A/K/A Family Budget Movers Status: Closed Recommended Order on Thursday, May 4, 2006.

Summary: Respondent`s registration as a mover should be revoked for failure to accept a check from the shipper and to relinquish household goods to the shipper. Recommend a fine and that registration revocation be mitigated if Respondent delivers the furniture.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES , )

)

Petitioner , )

)

vs. ) Case No. 05 - 4194

)

DEW I OTT MCDUFFIE, d/b/a DIXIE )

TRANSFER THE MOVERS, a/k/a THE )

MOVERS, a/k/a FAMILY BUDGET )

MOVERS , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on January 26, 2006, in Tampa, Florida, before Carolyn S.

Holifield, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Eric H. Miller, Esquire

Department of Agriculture and

Consumer Services

407 South Calhoun Street

Mayo Building, Suite 520

Tallahassee, Florida 32399

For Respondent: DeWiott McDuffie, pro se

4513 North Florida Avenue

Tampa, Florida 33603 - 3726

STATEMENT OF THE ISSUES

The issues in this care are (1) whether Respondent refused

to relinquish the household goods of a shipper in violation of

Subsection 507.06(2), Florida Statutes (2004) 1 ; (2) whether

Respondent conducted business under two unregistered names in

violation of Subsection 507.03(7), Florida Statutes; (3) whether

Respondent included provisions in its contracts which waived or

limited protection against damage or loss to household goods, in

violation of Subsection 507.07(6)(a), Florida Statutes; and, if

so, (4) wh at penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, the Department of Agriculture and Consumer

Services (Department) , issued a three - count Amended

Administrative Complaint against Respondent, Dewiott McDuffie,

d/b/a Dixie Transfer The Movers, a /k/a The Movers, a/ka/ Family

Budget Movers (Respondent). The Department forwarded the matter

to the Division of Administrative Hearings on or about

November 18, 2005. In a N otice issued December 6, 2005, the

case was set for hearing, and the hearing wa s conducted as

noticed.

Prior to the final hearing, the Department filed a motion

requesting that the Administrative Law Judge take official

recognition of Chapter 507, Florida Statutes, and that

Crestview, Florida , is more than 100 miles from Tampa, Flori da. 2

At the final hearing, the Department presented the

testimony of Danielle Brooks, formerly an investigator

specialist with the Department, and the deposition testimony of

Yalonda Toran. The two - volume deposition transcript of Yalonda

Toran was admitte d into evidence as the Department's

Exhibits 11 - A and 11 - B. In addition to the foregoing exhibits,

the Department's Exhibits 1 th r ough 9 and Exhibit 12 were

admitted into evidence. Respondent presented the testimony of

Dewiott McDuffie and Anthony McDuf fie. Respondent offered no

exhibits into evidence.

The hearing Transcript was filed on February 13, 2006. At

the conclusion of the hearing, the time for filing proposed

recommended orders was set for ten days after the Transcript was

filed. The Departme nt timely filed its Proposed Recommended

Order and a memorandum of law supporting its Proposed

Recommended Order. Respondent filed a P roposed R ecommended

O rder on March 1, 2006. 3 Both P roposed R ecommended O rders have

been considered in preparation of thi s Recommended Order.

FINDINGS OF FACT

1. At all material times, Respondent was registered with

the Department as an intrastate mover with intrastate mover

registration number IM434.

2. R espondent’s physical business address is 4501 N orth

Florida Avenue, Tampa, Florida 33603 - 3726.

3. Respondent operates his intrastate moving business

under the name “Dixie Transfer The Movers.”

Respondents' Failure to Deliver Household Goods

4. Yalonda R. Toran resides at 344 John King Road,

Crestview, Florida. Ms. Tor an also is employed in Crestview.

5. Charles Beadle is Ms. Toran’s uncle who resides at

11122 Whitney Chase Drive, Tampa, Florida .

6. On December 4, 2004, Respondent, personally or through

his employees, designees, or agents, contracted to move seven

pie ces of furniture from Mr. Beadle’s residence in Tampa to the

home of Ms. Toran in Crestview.

7. The furniture to be moved included a dining table, four

chairs, a hutch and base, and a table with a marble top. All of

these items were the property of Ms. T oran, having inherited

them from her grandmother, and were only used as personal

property in the home.

8. On behalf of Ms. Toran, Mr. Beadle engaged Respondent

to move the furniture. The reason was that at the time of the

transaction, Ms. Toran was in Cr estview , and the furniture was

in Mr. Beadle's home in Tampa.

9. Mr. Beadle paid the initial $250.00 required under the

contract , and Ms. Toran was to pay the b alance of $250.00 on

delivery.

10. The contract for moving Ms. Toran’s furniture was at

“carri er’s convenience.” This means Respondent, as the carrier,

would deliver the furniture at such time as he had a sufficient

load to transport in the direction of Crestview and was not

required to make a separate trip solely to deliver Ms. Toran’s

furniture.

11. Notwithstanding the "carrier's convenience" provision

in the contract, Ms. Toran believed the furniture would be

delivered on December 4, 200 4 , the same day as it was picked up.

12. Between December 6, 2004, and January 31, 2005,

Ms. Toran had s everal conversations with Respondent’s employees

concerning when the furniture delivery would be scheduled.

a. On December 6, 2004, Ms. Toran called Respondent’s

business telephone number and spoke with “Anthony.” ”Anthony”

is Anthony McDuffie, Responden t’s son, who is active in

Respondent’s business. Ms. Toran was told that the furniture

would be deliver ed in about two weeks.

b. After the furniture was not delivered within the stated

two weeks, Ms. Toran called Respondent's business number and

again sp oke with Anthony. During this conversation, Anthony

told Ms. Toran that her furniture was not on a truck, that he

had no control over its loading, and that she would have to

discuss the matter with the owner, who he identified as "Bill."

Ms. Toran then s poke to the person identified as "Bill" who told

her that he would check into the matter and then call her

regarding the status of her furniture. However, Ms. Toran never

received such a phone call.

c. A few days after the telephone communication describ ed

in paragraph 11 - b., Ms. Toran, again, spoke with Anthony.

During this telephone conversation, Anthony told Ms. Toran that

Respondent’s business was slow and that the furniture was still

not on the truck. Anthony also told Ms. Toran that he would

check on the furniture delivery, but was noncommittal on a

definite delivery date. Anthony said the furniture might be

delivered in two weeks, but that he did not know. Finally,

Anthony told Ms. Toran he would contact her when the furniture

actually was in tr ansit.

d. After the two - week period elapsed without any contact

from Respondent, Ms. Toran again called Respondent’s business

number and spoke with an unidentified individual who was unable

to provide any information or assistance. In a subsequent call

s he placed to the business number during the week of January 31,

2005, Ms. Toran spoke to Anthony, who told her the furniture

would be delivered “that weekend,” which would have been the

period of Fe bruary 5 through 6, 2005. Anthony further said

Ms. Toran would be called when the moving truck was in her area.

e. Neither Respondent nor his agents or employees ever

initiated contact with Ms. Toran about the delivery of her

furniture.

13. Ms. Toran’s furniture was not delivered during the

weekend of Februa ry 5 through 6, 2005, the time specified by

Anthony.

14. At approximately 7:15 a.m., local time, on Monday,

February 7, 2005, Respondent’s employees appeared at Ms. Toran’s

residence in Crestview and stated they had her furniture for

delivery. Ms. Toran received no advance notice that the truck

was in Crestview and that it would appear at that time.

Ms. Toran did not agree for delivery at that time, as she was

preparing to leave for work.

15. The driver of the truck, Respondent’s employee, told

Ms. Tor an the balance of the contract must be paid, in cash,

before they would unload the furniture. Ms. Toran stated she

did not have cash at that time because she had no advance

warning of their arrival and instead offered to have the cash

payment ready on the following day, February 8, 2005. The

driver requested that she contact Respondent’s office in Tampa

to discuss the situation.

16. Ms. Toran called the Tampa office and spoke with an

individual whom she believed was Anthony, advising him that she

did not have cash at that moment and offering to get the cash

and pay the following day, February 8, 2005. This request was

refused.

17. Ms. Toran then asked for sufficient time to obtain

cash and pay that day. Ms. Toran objected to Respondent 's

holding her fu rniture for over two months and now refusing to

wait for her to make the payment after failing to provide

advance notice of arrival.

18. Respondent’s representative refused to allow

additional time for Ms. Toran to obtain cash to pay the balance

and told her the truck would leave with her furniture still

aboard.

19. After completing her conversation with Respondent’s

office, Ms. Toran then told the driver she would pay by personal

check. At the time she offered payment by personal check,

Ms. Toran had s ufficient funds in the bank. Also, Ms. Toran’s

personal checks included her name and address printed on the

front.

20. The driver said he must consult with Respondent’s

office in Tampa. Without further discussion with Ms. Toran

about payment or the deli very, Respondent’s employees left with

her furniture and did not return.

21. Without explanation, Respondent’s employees declined

to accept a personal check from Ms. Toran in payment of the

required contract amount.

22. Respondent’s employees refused to unload Ms. Toran’s

furniture after she offered payment by personal check.

23. Respondent continues to retain possession of

Ms. Toran’s furniture.

Respondent's Registration of Fictitious Name

24. Respondent registered “Dixie Transfer The Movers” as a

fi ctitious name with the Florida Department of State, Division

of Corporations.

25. In his registration renewal application filed with the

Department on November 19, 2004, Respondent stated his business

name as “Dixie Transfer The Movers” and struck through the names

“Family Moving & Storage,” “Golden Rule Moving,” and “Movers

Moving & Storage.” The application thus does not include the

names “The Movers Moving & Storage” or “Family Budget Movers.”

26. On January 3, 2005, the Department issued Respondent's

registration certificate. The registration certificate issued

by the Department included only the name “Dixie Transfer The

Movers,” as stated in Respondent’s registration renewal

application.

27. In the Verizon 2004 telephone directory, published in

Nov ember 2004, and effective for the period November 2004

through November 2005, Respondent advertised his moving services

separately under the names “The Movers Moving & Storage” and

“Family Budget Movers.” In the advertisements for each name,

"T he Movers M oving & Storage" and "Family Budget Movers, "

Respondent’s Florida intrastate mover registration number IM434

was used.

28. Respondent failed to register “The Movers Moving &

Storage” as a fictitious name with the Department in his licen se

renewal of Decem ber 2004.

29. Respondent failed to register “Family Budget Movers”

as a fictitious name with the Department in his license renewal

of December 2004.

30. An advertisement placed in the yellow pages is

effective for a whole year and cannot be changed once published.

Respondent chose to advertise under the names “The Movers Moving

& Storage” and “Family Budget Movers” prior to November 2004,

when the Verizon yellow pages were published and distributed for

the year 2004 – 2005. However, Respondent did not inc lude these

additional names when he filed his application to renew his

registration certificate. Therefore, for the period from

January 3, 2005 , until at least the publication and distribution

of the Verizon yellow pages for 2005 – 2006, Respondent advertis ed

under “The Movers Moving & Storage” and “Family Budget Movers”

without having registered t hese names with the Department.

Terms and Conditions of Respondent's Contract

31. Respondent's contract for the move of Ms. Toran’s

furniture includes the follow ing provision related to the method

of pa yment for the moving services:

Section 2. Payment:

(A) All charges are payable in cash,

cashier’s check and/or personal check.

Note: Personal checks are subject to

Company approval. The Company reserves the

right to refuse any personal checks at their

discretion. [ 4 ]

32. Respondent's contract for the move of Ms. Toran's

furniture limits the company's liability as follows:

Section 3. Liability of the Company:

* * *

( c ) The company is not respon sible for

any fragile articles injured or broken,

unless packed by its employees and unpacked

by them at the time of delivery and in no

event shall the company be liable except for

its own negligence. The company will not be

responsible for mechanical or electrical

functioning of any articles such as but not

limited to pianos, radios, phonographs,

television sets, clocks, barometers,

mechanical refrigerators or air conditioners

whether or not such articles are packed or

unpacked by the company.

* * *

(g) The company shall not be responsible

for loss of or damage to any article

contained in drawers, or in packages, cases

or containers not packed and unpacked by the

employees of the company unless such

containers are opened for the company

inspec tion and then only for such articles

that are specifically listed by the customer

and are receipted for the company or its

agent.

(h) In no event shall the company be

responsible for loss or damage to documents,

stamps, securities, specie or jewelry un less

a special agreement in writing is made

between the customer and the company with

respect to such articles.

33. The form used to prepare the contract for Ms. Toran’s

move is a standard form Respondent uses , and the above - quoted

provisions in the cont ract appear in all of his moving

contracts.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Chapter 120, Florida Statutes (2005) .

35. Subsection 50 7.09(1), Florida Statutes, authorizes the

Department to impose administrative remedies and penalties on a

mover or person employed by a mover who has violated any

provision of Chapter 507, Florida Statutes.

36. Upon finding a mover has violated any of the

p rovisions of Chapter 507, Florida Statutes, the Department is

authorized to impose penalties including, but not limited to, an

administrative fine not to exceed $5,000.00 per violation,

revocation or suspension of a registration, directing Respondent

to cease and desist from certain activities, or placing

Respondent on probation. § 507.09(1), Fla. Stat.

37. For the violations alleged in the Amended

Administrative Complaint, the Department has sought penalties

that may include revocation of Respondent's registration and

imposition of the maximum administrative penalty of $5,000.00

for each of the alleged violation s . Therefore, in order to

prevail in this proceeding, the Department must prove by clear

and convincing evidence that Respondent committed the violations

alleged in the Amended Administrative Complaint. Department of

Banking and Finance, Division of Securities and Investor

Protection vs. Osborne Stern and Co. , 670. So. 2d 292

(Fla. 1996).

3 8 . In adopting Chapter 507, Florida Statutes, the

Legi slature specifically intended “ . . . to secure the

satisfaction and confidence of shippers and members of the

public when using a mover.” § 507.02(3), Fla. Stat. The act is

interpreted liberally to establish the law governing intrastate

moving in Florid a. § 507.02(1), Fla. Stat.

3 9 . Count One of the Amended Administrative Complaint

alleges that Respondent violated Subsection 507.06(2), Florida

Statutes, which states in pertinent part:

A mover may not refuse to relinquish

household goods to a shipper or fail to

place the goods inside a shipper's dwelling

based on the mover's refusal to accept an

acceptable form of payment.

40 . Section 507.01, Florida Statutes, defined the terms

"household goods," "mover , " and "shipper" as follows:

(7) "Household g oods" means personal

effects or other personal property found in

a home, personal residence, storage

facility, or other location, including

property in a storehouse or warehouse

facility that is owned or rented by a

shipper or shipper's agent, but does not

include freight or personal property moving

to or from a factory, store, or other place

of business.

(8) "Mover" means any person who engages

in the transportation or shipment of

household goods for compensation.

(9) "Shipper" means any person who uses

the services of a mover to transport or ship

household goods.

41 . S ubs ection 507.05(6), Florida Statutes, lists the

acceptable forms of payment for moving services governed by

Chapter 507, Florida Statute s . That subsection states:

(6) Acceptabl e forms of payment. A mover

shall accept a minimum of two of the three

following forms of payment:

(a) Cash, cashier's check, money order,

or traveler's check;

(b) Valid personal check, showing upon

its face the name and address of the shipper

or authorized representative; or

(c) Valid credit card, which shall

include, but not be limited to, Visa or

MasterCard.

A mover shall clearly and conspicuously

disclose to the shipper in the estimate and

contract for services the forms of payments

the m over will accept from those categories

described in paragraphs (a) - (c).

42 . As defined by statute, Respondent is a “mover,”

Ms. Toran is a “shipper,” and her furniture items constitute

“household goods.” § 507.01, Fla. Stat.

43 . The clear and convinci ng evidence established that

Ms. Toran offered to pay the balance of her moving charges by a

valid personal check. There is no dispute that Ms. Toran's name

as well as her current address and telephone number were pre -

printed on the check. Nonetheless, the clear and convincing

evidence established that Respondent and/or his employees

refused to accept payment by Ms. Toran's valid personal check. 5

4 4 . The clear and convincing evidence established that

after Respondent and/or his employees refused to acce pt

Ms. Toran's valid personal check, Respondent also refused to

relinquish Ms. Toran's furniture or place the household goods in

her house. Instead, Respondent's employees returned the

furniture to Tampa, where, as of the day of the final hearing,

it rem ained in storage.

4 5 . The Department met it s burden of proof and established

by clear and convincing evidence that Respondent violated

Subsection 507.06(2), Florida Statutes, as alleged in Count One

of the Am ended Administrative Complaint.

4 6 . Count Two of the Amended Administrative Complaint

alleges that Respondent violated Subsection 507.03(7), Florida

Statutes, by conducting business in names that were not

registered with the Department.

4 7 . Subsection 507.03(7), Florida Statutes , states:

No registr ation shall be valid for any

mover transacting business at any place

other than that designated in its

application, unless the department is first

notified in writing in advance of any change

of location. A registration issued under

this act shall not be assignable, and the

mover shall not be permitted to conduct

business under more than one name except as

registered. A mover desiring to change its

registered name or location or designated

agent for service of process at a time other

than upon renewal of registration shall

notify the department of such change.

4 8 . The clear and convincing evidence established that

Respondent was registered with the Department as "Dixie Transfer

T he Movers," but conducted business in two names that were not

registered wi th the Department. The clear and convincing

evidence established that in the yellow pages of the telephone

book, Respondent listed its registration number with two

separate unregistered businesses, "The Movers Moving & Storage"

and "Family Budget Movers."

4 9 . The Department met its burden of proof and established

by clear and convincing evidence that Respondent violated

Subsection 507.03(7), Florida Statutes, as alleged in Count Two

of the Amended Administrative Complaint.

50 . Count Three of the Amend ed Administrative Complaint

alleges that Respondent violated Subsection 507.04(1), Florida

Statutes, by including in its contract provisions which waive or

limit the protection against damage or loss to household goods.

51 . Subsection 507.04(1), Florida S tatutes, states in

pertinent part:

(1) A mover operating in this state shall

maintain current and valid cargo legal

liability valuation and insurance cov erage

which includes:

(a) Coverage for cargo legal liability

for loss or damage to household goo ds

arising or resulting from the negligence of

the mover, its employees, or agents, in an

amount not less than $10,000 per shipment.

* * *

(c) A limitation on the release of a

mover's liability for the value of a

shipper's goods at a rate not less than 60

cents per pound per article. This

limitation of liability shall be disclosed

to the shipper in writing at the time the

estimate or contract for services is

executed prior to the provision of any

moving or accessorial services. The

disclosure shall also inform the shipper of

the opportunity to reject or select

additional valuation, including the cost and

coverage of such additional valuation.

52 . S ubs ection 507.07(6)(a), Florida Statutes, states in

pertinent part:

It is a violation of this a ct to:

* * *

(6)(a) Include in any contract any

provision purporting to waive or limit any

right or benefit provided to shippers under

this act.

5 3 . Subsection 507.04(1), Florida Statutes, quoted above,

specified the minimum terms for releas ing a mover's liability

for damages and limits any release of Respondent’s liability to

not less than $0.60 per pound , per article.

5 4 . Notwithstanding the provisions of Subsection s

507.04(1)(a) and (c), the clear and convincing evidence

established that Respondent’s form contract, including the form

used for Ms. Toran’s move, includes a pre - printed provision that

purports to state grounds under which Respondent disclaims any

liability for damages to the shipper’s goods. See Section 3 of

Respondent's cont ract quoted in paragraph 32 .

5 5 . The Department has established by clear and convincing

evidence that Respondent's standard/form contract includes

provisions which purport to waive or limit the shipper's rights

or benefits as it relates to the mover's leg al liability. Thus,

the Department has met its burden and proved that Respondent

violated Subsection 507.07(6), Florida Statutes, as alleged in

Count Three of the Amended Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact an d Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order finding

that Respondent violated Subsections 507.06(2), 507.03(7), and

507.07(6)(a), Florida Statu t es, as alleged in the Amended

Administrative Complaint and imposing the foll owing sanctions:

1. Imposition of an administrative fine in the amount of

$5,000.00 and revocation of Respondent’s Intrastate Mover’s

Certificate. However, Respondent may mitigate this penalty a s

provided below in paragraph 2 .

2. Mitigation. If Respond ent delivers to Ms. Toran the

furniture withheld from her, places the furniture into her

dwelling, and provides the Department (through its counsel) with

verification from Ms. Toran that her complaint has been

satisfied prior to the entry of the final orde r, it is

recommended that the penalty imposed in paragraph 1 be mitigated

to the following:

a. Imposition of a reduced administrative fine in the

amount of $2,500.00.

b. Respondent’s Intrastate Mover 's Certificate be placed

on a period of probation for o ne year, conditioned on

Respondent 's satisfying all consumer complaints arising during

the period of probation.

c. Respondent shall adopt and utilize a form of contract

which meets all requirements of Chapter 507, Florida Statutes.

DONE AND ENTERED this 4 th day of May , 2006 , in Tallahassee,

Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of May , 2006 .

ENDNOTES

1/ All references to Florida Statutes are to Florida Statutes

(2004) unle ss otherwise indicated.

2 / The latter request was to establish that Yalonda Toran, the

complainant in this case , was unavailable to appear at hearing

in Tampa due to her residing in Crestview.

3 / On March 2, 2006, the Department filed a Motion to Strik e

Respondent's Late - Filed Proposed Recommended Order. The motion

to strike was denied.

4/ As noted in endnote 5 , this provision limits a right or

benefit to the shipper, Ms. Toran, under Subsection 507.05(6),

Florida Statutes. However, the Amended Admi nistrative Complaint

does not allege that this i s a factual basis for Respondent's

violation of Subsection 507.07(6), Florida Statutes. Thus, this

fact will not be considered as a vio lation of the latter

provision.

5 / Respondent included a provision in its contract to move

Ms. Toran's furniture which states Respondent will accept

payment by “ . . . cash, cashier’s check, and/or personal check .

. . . ” However, the contract then limits payment options by

stating that "the company reserves the right to re fuse any check

at their [sic] discretion." This provision of the contract is

contrary to Subsection 507.05(6), Florida Statu t es . According

to that statutory provision, to be valid, the check must show on

its face the name and address of the shipper or au thorized

representative.

COPIES FURNISHED :

Eric H. Miller, Esquire

Department of Agriculture and

Consumer Services

407 South Calhoun Street

Mayo Building, Suite 520

Tallahassee, Florida 32399

DeW io tt McDuffie

4513 North Florida Avenue

Tampa, Florida 33603 - 3726

James R. Kelly, Director

Division of Consumer Services

Department of Agriculture and

Consumer Services

Mayo Building, Room 520

407 South Calhoun Street

Tallahassee, Florida 32399 - 0800

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.