07-004597
Department Of Agriculture And Consumer Services vs.
American Auto Glass Network, Inc.
Status: Closed
Recommended Order on Tuesday, March 11, 2008.
Recommended Order on Tuesday, March 11, 2008.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF AGRICULTURE AND )
13CONSUMER SERVICES, )
16)
17Petitioner, )
19)
20vs. ) Case No. 07-4597
25)
26AMERICAN AUTO GLASS NETWORK, )
31INC., )
33)
34Respondent. )
36_________________________________)
37RECOMMENDED ORDER
39Pursuant to notice, a formal hearing was held in this case
50on December 13, 2007, by video teleconference, with the parties
60appearing in Fort Lauderdale, Florida, before Patricia M. Hart,
69a duly-designated Administrative Law Judge of the Division of
78Administrative Hearings, who presided in Tallahassee, Florida.
85APPEARANCES
86For Petitioner: Eric H. Miller, Esquire
92Department of Agriculture &
96Consumer Services
982005 Apalachee Parkway
101Tallahassee, Florida 32301
104For Respondent: Magdalena Gore, President
109American Auto Glass Network, Inc,
11411355 Southwest 53rd Terrace
118Miami, Florida 33165
121STATEMENT OF THE ISSUE
125Whether the Respondent committed the violations alleged in
133the Administrative Complaint dated August 23, 2007, and, if so,
143the penalty that should be imposed.
149PRELIMINARY STATEMENT
151On August 23, 2007, the Department of Agriculture and
160Consumer Services ("Department") filed an Administrative
168Complaint charging that American Auto Glass Network, Inc.,
176("American Auto Glass") was operating as a motor vehicle repair
188shop without being properly registered with the Department as
197required by Section 559.904, Florida Statutes (2007), 1 which
206constituted a violation of Section 559.920(17), Florida
213Statutes. Magdalena Gore, the President of American Auto Glass,
222disputed material facts in the Administrative Complaint and
230requested a formal administrative hearing. The Department
237transmitted the matter to the Division of Administrative
245Hearings for assignment of an administrative law judge.
253Pursuant to notice, the final hearing was held on December 12,
2642007.
265At the hearing, the Department presented the testimony of
274Richard Strong and Ms. Gore; Petitioner's Exhibits 4 through 9
284were offered and received into evidence. Ms. Gore testified on
294behalf of American Auto Glass; American Auto Glass did not offer
305any documents into evidence. Official recognition was granted,
313at the Department's request, to Sections 559.901, .902, .903,
322.904, .920, and .921, Florida Statutes.
328The transcript of the proceedings was filed with the
337Division of Administrative Hearings on February 6, 2008, and the
347parties timely filed their proposed findings of fact and
356conclusions of law, which have been considered in the
365preparation of this Recommended Order.
370FINDINGS OF FACT
373Based on the oral and documentary evidence presented at the
383final hearing and on the entire record of this proceeding, the
394following findings of fact are made:
4001. The Department is the state agency responsible for
409registering and regulating motor vehicle repair shops. See
417§§ 559.904, .920, and .921, Fla. Stat.
4242. Ms. Gore is the current president and sole shareholder
434of American Auto Glass. She is also its only employee.
4443. American Auto Glass's physical address is 873 Orchid
453Drive, Plantation, Florida 33317, which is Ms. Gore's residence.
462American Auto Glass's business records are kept at this address,
472and its invoices and billings to various insurance companies are
482prepared there. All business correspondence and payments go to
491Post Office Box 17484, Fort Lauderdale, Florida 33318; and its
501the business telephone is Ms. Gore's cell phone. American Auto
511Glass is a "Sub-Chapter S" corporation.
5174. Prior to June 2006, Ms. Gore and Ana Diaz jointly owned
529American Auto Glass; Ms. Gore purchased the business in
538June 2006, and Ms. Diaz has not been involved in the business
550since that time.
5535. American Auto Glass is an approved vendor of automobile
563glass replacement claims for several insurance companies, and it
572acts as a broker handling automobile glass replacement claims
581for persons insured by those insurance companies.
5886. When an insurance company receives a claim from an
598insured for replacement of damaged automobile glass, the
606insurance company assigns the claim to American Auto Glass.
615American Auto Glass receives the assignment either through a
624telephone call from the insurance company's claims department or
633in a facsimile transmission from a glass vendor, that is, an
644administrator under contract with the insurance company to sub-
653contract automobile glass replacement claims to other agents in
662the field.
6647. The insurance company or glass vendor tells its
673insureds that it will handle the assignment of the claims and
684does not refer its insureds to American Auto Glass. Rather, it
695advises the insureds that they will be contacted by the person
706who will do the work of replacing the glass.
7158. Once American Auto Glass receives the claim referral,
724Ms. Gore contacts an independent sub-contractor who will do the
734installation of the automobile glass replacement. The sub-
742contractors used by American Auto Glass also work for other
752companies.
7539. As part of the assignment, American Auto Glass receives
763complete information regarding the type of vehicle, the damages,
772and the materials that need to be replaced, which Ms. Gore
783transmits to the sub-contractor.
78710. The sub-contractor assigned the installation job
794contacts the insured and arranges an appointment with the
803insured to bring in the car to the sub-contractor for the
814replacement installation.
81611. American Auto Glass does not, at any time, have
826possession of the vehicles for which it arranges automobile
835glass replacement installations, nor does it share a business
844location with the sub-contractors it engages to do the
853automobile glass replacement installations.
85712. Some sub-contractors used by American Auto Glass for
866automobile glass replacement installations furnish both parts
873and labor. If the sub-contractor does not furnish the parts but
884only the labor, the sub-contractor orders the necessary parts
893from AGS Auto Glass Export or another parts supplier.
90213. American Auto Glass has an account with AGS Auto Glass
913Export. The sub-contractor picks up the necessary parts for a
923job, and AGS Auto Glass Export bills American Auto Glass
933directly for these parts.
93714. Once the glass replacement installation is completed,
945the sub-contractor either sends an invoice to American Auto
954Glass or contacts Ms. Gore and provides the vehicle information
964required by the insurance company and the cost of the
974installation.
97515. American Auto Glass bills the insurance company for
984the work done, and the insurance company pays American Auto
994Glass.
99516. American Auto Glass pays the sub-contractors for parts
1004and labor if the sub-contractor has furnished the parts
1013necessary for the replacement or for labor only if the sub-
1024contractor has ordered the parts from AGS Auto Glass Export, the
1035cost of which are billed directly to American Auto Glass.
1045Ms. Gore adds a certain percentage to these charges when she
1056bills the insurance company.
106017. American Auto Glass's primary sub-contractor does not
1068furnish parts, and he has a negotiated price with American Auto
1079Glass for each installation.
108318. American Auto Glass acts exclusively as a broker
1092arranging with independent sub-contractors for the automobile
1099glass replacement installations on behalf of insurance
1106companies. 2 American Auto Glass at no time has any contact with
1118the insurance company's insureds or their vehicles.
112519. At one time prior June 2006, when Ms. Gore purchased
1136sole interest in the business, American Auto Glass employed an
"1146installer" who did the actual work of installing automobile
1155glass replacements. During this time, American Auto Glass was
1164registered with the Department as a motor vehicle repair shop.
1174The registration expired on May 29, 2007. 3
118220. The evidence presented by the Department is not
1191sufficient to establish that American Auto Glass is a motor
1201vehicle repair shop whose business is motor vehicle repairs.
1210Rather, American Auto Glass acts as a middleman between
1219insurance companies and motor vehicle repair shops that do the
1229actual glass replacement installation. Its only physical
1236location is Ms. Gore's residence, and the business activities
1245that take place at that location do not include any activities
1256related to the actual work of motor vehicle repair.
1265CONCLUSIONS OF LAW
126821. The Division of Administrative Hearings has
1275jurisdiction over the subject matter of this proceeding and of
1285the parties thereto pursuant to Sections 120.569 and 120.57(1),
1294Florida Statutes.
129622. In its Administrative Complaint, the Department seeks
1304to impose an administrative fine on American Auto Glass for its
1315failure to register as a motor vehicle repair shop. Because an
1326administrative fine constitutes a penalty, the Department has
1334the burden of proving by clear and convincing evidence that
1344American Auto Glass is guilty of the offense alleged in the
1355Administrative Complaint. Department of Banking and Finance,
1362Division of Securities and Investor Protection v. Osborne Stern
1371and Co. , 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington ,
1383510 So. 2d 292 (Fla. 1987).
138923. The Department has charged American Auto Glass with a
1399violation of Section 559.20(17), Florida Statutes, which
1406provides:
1407559.920 Unlawful acts and practices.--It
1412shall be a violation of this act for any
1421motor vehicle repair shop or employee
1427thereof to:
1429* * *
1432(17) Perform any other act that is a
1440violation of this part or that constitutes
1447fraud or misrepresentation. [4]
145124. The underlying violation alleged by the Department is
1460found in 559.904(1), Florida Statutes, which provides: "Each
1468motor vehicle repair shop engaged or attempting to engage in the
1479business of motor vehicle repair work must register with the
1489department prior to doing business in this state. . . ." In
1501order to prove that American Auto Glass is required to register
1512as a motor vehicle repair shop, it must first prove that
1523American Auto Glass is a motor vehicle repair shop.
153225. Section 559.903, Florida Statutes, contains the
1539following definitions, which are pertinent to this proceeding:
1547(3) "Employee" means an individual who is
1554employed full time or part time by a motor
1563vehicle repair shop and performs motor
1569vehicle repair.
1571* * *
1574(6) "Motor vehicle repair shop" means any
1581person who, for compensation, engages or
1587attempts to engage in the repair of motor
1595vehicles owned by other persons and
1601includes, but is not limited to: mobile
1608motor vehicle repair shops, motor vehicle
1614and recreational vehicle dealers; garages;
1619service stations; self-employed individuals;
1623truck stops; paint and body shops; brake,
1630muffler, or transmission shops; and shops
1636doing glass work. Any person who engages
1643solely in the maintenance or repair of the
1651coach portion of a recreational vehicle is
1658not a motor vehicle repair shop.
1664(7) "Place of business" means a physical
1671place where the business of motor vehicle
1678repair is conducted, including any vehicle
1684constituting a mobile motor vehicle repair
1690shop from which the business of motor
1697vehicle repair is conducted.
1701(8) "Motor vehicle repair" means all
1707maintenance of and modifications and repairs
1713to motor vehicles, and diagnostic work
1719incident thereto, including, but not limited
1725to, the rebuilding or restoring of rebuilt
1732vehicles, body work, painting, warranty
1737work, and other work customarily undertaken
1743by motor vehicle repair shops.
174826. Based on the findings of fact herein, the Department
1758has failed to prove that American Auto Glass is a motor vehicle
1770repair shop as defined in Section 559.903(6), Florida Statutes.
1779The Department presented no evidence to support a finding that
1789American Auto Glass engages in motor vehicle repairs as defined
1799in Section 559.903(8), Florida Statutes.
180427. In the alternative, Section 559.904(9) provides: "No
1812registration application or fee is required for an individual
1821with no employees and no established place of business. . . ."
1833Based on the findings of fact herein, American Auto Glass does
1844not have a "place of business" as defined in Section 559.903(7),
1855Florida Statutes, and it has no employees, as defined in
1865Section 559.903(3), Florida Statutes, because Ms. Gore does not
1874perform motor vehicle repairs. Accordingly, American Auto Glass
1882is not required to register as a motor vehicle repair shop
1893because it has no "employees" and no "place of business."
1903RECOMMENDATION
1904Based on the foregoing Findings of Fact and Conclusions of
1914Law, it is RECOMMENDED that the Department of Agriculture and
1924Consumer Services enter a final order dismissing the
1932Administrative Complaint filed against American Auto Glass
1939Network, Inc.
1941DONE AND ENTERED this 11th day of March, 2008, in
1951Tallahassee, Leon County, Florida.
1955S
1956___________________________________
1957PATRICIA M. HART
1960Administrative Law Judge
1963Division of Administrative Hearings
1967The DeSoto Building
19701230 Apalachee Parkway
1973Tallahassee, Florida 32399-3060
1976(850) 488-9675 SUNCOM 278-9675
1980Fax Filing (850) 921-6847
1984www.doah.state.fl.us
1985Filed with the Clerk of the
1991Division of Administrative Hearings
1995this 11th day of March, 2008.
2001ENDNOTES
20021 / All references to the Florida Statutes are to the 2007
2014edition unless otherwise indicated.
20182 / In order to do business as a motor vehicle repair shop in
2032Broward County, a business is required to carry garage keeper's
2042insurance. American Auto Glass cannot qualify for this
2050insurance because no insurance company will agree to indemnify
2059American Auto Glass for potential damage caused by a third-party
2069independent sub-contractor. As a result, American Auto Glass
2077cannot register as a motor vehicle repair shop in Broward
2087County.
20883 / The investigation that gave rise to the Administrative
2098Complaint in this case was initiated when the Department became
2108aware that American Auto Glass's registration as a motor vehicle
2118repair shop had expired. The purpose of the investigation was
2128to determine if American Auto Glass was still doing business as
2139a motor vehicle repair shop. The Administrative Complaint was
2148issued after the investigator had a conversation with Ana Diaz,
2158who had sold her interest in American Auto Glass to Ms. Gore in
2171June 2006. The investigator did not make a site visit to
2182American Auto Glass. He spoke with Ms. Gore by phone, but he
2194did not discuss with her the manner in which American Auto Glass
2206operated or its business practices.
22114 / Interestingly, the Department did not charge American Auto
2221Glass with a violation of Section 559.920(1), Florida Statutes,
2230which provides:
2232It shall be a violation of this act for any
2242motor vehicle repair shop or employee
2248thereof to:
2250(1) Engage or attempt to engage in repair
2258work for compensation of any type without
2265first being registered with or having
2271submitted an affidavit of exemption to the
2278department.
2279It would seem that this violation would more precisely describe
2289the basis for the Department's charge against American Auto
2298Glass than would the violation set forth in
2306Section 559.9210(17), Florida Statutes.
2310COPIES FURNISHED:
2312Eric H. Miller, Esquire
2316Department of Agriculture and
2320Consumer Services
23222005 Apalachee Parkway
2325Tallahassee, Florida 32301
2328Magdalena Gore
2330American Auto Glass Network, Inc.
233511355 Southwest 53rd Terrace
2339Miami, Florida 33165
2342Richard Tritschler, General Counsel
2346Department of Agriculture and Consumer Services
2352407 South Calhoun Street, Suite 520
2358Tallahassee, Florida 32399-0800
2361Honorable Charles H. Bronson
2365Commissioner of Agriculture
2368Department of Agriculture and Consumer Services
2374The Capitol, Plaza Level 10
2379Tallahassee, Florida 32399-0810
2382NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2388All parties have the right to submit written exceptions within
239815 days from the date of this recommended order. Any exceptions
2409to this recommended order should be filed with the agency that
2420will issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 03/11/2008
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 02/11/2008
- Proceedings: Letter to Judge Hart from M. Gore regarding proposed decision filed.
- Date: 02/06/2008
- Proceedings: Transcript filed.
- Date: 02/01/2008
- Proceedings: Transcript filed.
- PDF:
- Date: 01/23/2008
- Proceedings: Order Granting Extension of Time for Filing Proposed Recommended Orders.
- PDF:
- Date: 01/16/2008
- Proceedings: Joint Motion for Extension of Time to File Proposed Recommended Orders filed.
- Date: 12/13/2007
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 12/05/2007
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for December 13, 2007; 10:00 a.m.; Lauderdale Lakes and Tallahassee, FL; amended as to location and Video).
- Date: 12/04/2007
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 11/30/2007
- Proceedings: Letter to Judge Hart from M. Gore regarding retaining jurisdiction filed.
- PDF:
- Date: 11/30/2007
- Proceedings: Petitioner`s Reply to Respondent`s Objection to Motion to Relinquish Jurisdiction and Request for Hearing filed.
- PDF:
- Date: 11/30/2007
- Proceedings: Letter to Judge Hart from M. Gore objecting to having jurisdiction relinquished to Department of Agriculture filed.
- PDF:
- Date: 11/29/2007
- Proceedings: Notice of Filing Response to Petitioner`s Request for Production filed.
- PDF:
- Date: 10/24/2007
- Proceedings: Notice of Hearing (hearing set for December 13, 2007; 10:00 a.m.; Fort Lauderdale, FL).
Case Information
- Judge:
- PATRICIA M. HART
- Date Filed:
- 10/05/2007
- Date Assignment:
- 10/05/2007
- Last Docket Entry:
- 05/29/2009
- Location:
- Lauderdale Lakes, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Magdalena Gore
Address of Record -
Eric H. Miller, Esquire
Address of Record