08-000853 Department Of Agriculture And Consumer Services vs. Target Vanlines, Inc. Status: Closed Recommended Order on Wednesday, October 15, 2008.

Summary: Petitioner demonstrated that Respondent, a mover, failed to provide a shipper with a written, signed, and dated contract and estimate and another shipper with the name, telephone number, and physical location of stored household goods.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 08-0853

)

TARGET VANLINES INC., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on April 28, 2008, by video teleconference with connecting sites

in Lauderdale Lakes and Tallahassee, Florida, before Errol H.

Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Eric H. Miller, Esquire

Department of Agriculture and

Consumer Services

2005 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent: Yosef J. Kramerman, pro se

Target VanLines, Inc.

3201 Griffin Road, Suite 203

Fort Lauderdale, Florida 33312-6900

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what action should be taken.

PRELIMINARY STATEMENT

By Administrative Complaint dated January 9, 2008, the

Department of Agriculture and Consumer Services (Department)

charged Target VanLines, Inc. (Target VanLines) with two counts

of violating Chapter 507, Florida Statutes. Target VanLines was

charged as follows: Count 1, violating Section 507.05, Florida

Statutes, by failing to provide a written, signed, and dated

contract and estimate to a prospective shipper before providing

any moving or accessorial services; and Count 2, violating

Section 507.05(4), Florida Statutes, by failing to provide the

prospective shipper with the name, telephone number, and

physical address of the location where the goods will be held

pending further transportation, including situations where the

mover retains possession of goods pending resolution of a fee

dispute. Target VanLines contested the Administrative Complaint

and timely requested a formal hearing. On February 20, 2008,

this matter was referred to the Division of Administrative

Hearings.

At hearing, Yosef Joey Kramerman, the representative for

Target VanLines appeared by telephone. Target VanLines

requested a continuance, to which the Department objected.

After hearing argument from Target VanLines and the Department,

the request was denied. The Department presented the testimony

of four witnesses, including Mr. Kramerman, and entered 13

exhibits (Petitioner's Exhibits numbered 1-13) into evidence.

Mr. Kramerman testified on behalf of Target VanLines and entered

no exhibits into evidence. No notary was present at the

location at which Mr. Kramerman testified; however, the

Department waived the requirement of the presence of a notary on

the condition that Mr. Kramerman place on the record his Florida

driver’s license number, which he did.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for ten days following the filing of the transcript. The

Transcript, consisting of one volume, was filed on May 19, 2008.

On May 22, 2008, Respondent filed an agreed request for an

extension of time until June 10, 2008, for the filing of post-

hearing submissions, which was granted. The Department timely

filed its post-hearing submission. Target VanLines chose not to

file a post-hearing submission. The Department’s post-hearing

submission was considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times material hereto, Target VanLines was

registered with the Department as an intrastate mover of

household goods, holding registration number IM 1450. Target

VanLines’ registration with the Department expired on

February 8, 2008.

2. Since February 2008, all moves by Target VanLlines have

been out of state.

3. No dispute exists that Target VanLines is registered as

a Florida corporation with the Department of State, Division of

Corporations, under corporation number P06000113440. Further,

no dispute exists that, previously, Target VanLines was

administratively dissolved on September 14, 2007, by the

Division of Corporations for Target VanLlines’ failure to file

its 2007 annual report/uniform business report.

4. At the time of hearing, Target VanLines’ physical

address was 3282 North 29th Court, Hollywood, Florida 33020.

Target VanLines’ prior physical address was 5657 Dawson Street,

Hollywood, Florida 33023.

The Marsha Painter Situation

5. On August 12, 2006, Marsha Painter entered into a

contract with Zip to Zip Moving & Storage, Inc. (Zip to Zip) to

move Ms. Painter’s household goods from her residence at 1801

East Terra Mar Drive, Fort Lauderdale, Florida into storage with

Zip to Zip until she located another residence at which time her

household goods would be delivered to her new residence.

6. At that time, the father of Yosef Joey Kramerman,

Target VanLines’ representative at hearing, was a 50 percent

owner of Zip to Zip. Mr. Kramerman’s father did not testify at

hearing.

7. No packing of the household goods was performed by Zip

to Zip. The move was considered a local move.

8. The contract with Zip to Zip failed to include and

disclose the name, physical location, or telephone number of the

storage location. Furthermore, Ms. Painter was not verbally

informed by Zip to Zip where the storage facility was located.

9. The storage fee was $160.00 per month, payable on the

13th of every month to Zip to Zip. The fee was sometimes paid

monthly and, at times, for a three-month period.

10. For approximately eight months, at the end of October

or the beginning of November 2006 to May 2007, Ms. Painter was

outside of the United States.

11. During her absence, Ms. Painter’s mother paid the

storage fees from Ms. Painter’s personal checking account.

12. Further, during her absence, Ms. Painter’s mother

engaged in communications on behalf of Ms. Painter regarding all

matters associated with Ms. Painter’s household goods.

13. By letter dated January 4, 2007, to Zip to Zip

Ms. Painter’s mother, on Ms. Painter’s behalf, mailed a check in

the amount of $480.00 for three months storage to Zip to Zip.

14. Ms. Painter’s mother did not testify at hearing.

15. Target VanLines does not deny that, at some point

after the letter dated January 4, 2007, it verbally informed

Ms. Painter’s mother that it had taken over Zip to Zip and the

storage facility of Zip to Zip; that Target VanLines had taken

over the storage of and had possession of her household goods

because Zip to Zip had gone out of business; and that future

storage payments should be made payable to it, not Zip to Zip. 1

16. Furthermore, Target VanLines admits that it notified

Ms. Painter in writing that future storage payments should be

made payable to it, not Zip to Zip.

17. By invoice dated March 12, 2007, Target VanLines

charged Ms. Painter three months storage, from March 13 through

June 13, 2007, in the amount of $480.00. Target VanLines does

not deny that it received the $480.00 for storage fees.

18. Target VanLines admits that it provided Ms. Painter

with storage services for her household goods and that it was

paid for the storage services.

19. Ms. Painter does not deny that she had knowledge,

through her mother, that, as of March 12, 2007, Target VanLines

had possession of her household goods and that Target VanLines

was being paid for storage service.

20. However, Ms. Painter did not execute or authorize a

written contract with Target VanLines for storage service.

Neither did she execute or authorize a written contract with

Target VanLines for moving services.

21. Further, no evidence was presented of any transaction

between Zip to Zip and Target VanLines or that Target VanLines

had assumed the obligations of Zip to Zip.

22. An inference is drawn and a finding is made that, at

all times pertinent hereto, Target VanLines was aware that Zip

to Zip failed to include in the written contract with

Ms. Painter the name, telephone number, and physical address of

the location where her goods were to be stored and that it

(Target VanLines) had no written contract with Ms. Painter

regarding the storage of her household goods.

23. Furthermore, an inference is drawn and a finding is

made that, as of March 12, 2007, at the time of the invoice,

Target VanLines had not entered into a written contract with

Ms. Painter for the storage of her household goods, which

included the name, telephone number, and physical address of the

location where her household goods were stored.

24. In June 2007, Ms. Painter contacted Target VanLines

for the delivery of her household goods to her new residence.

At the time of the first delivery, all of her household goods

were not delivered. Over a period of time, she went to three

different storage facilities, including at Target VanLines’

prior address on Dawson Street, to identify her household goods

because some of her household goods were missing at each

delivery, which also resulted in multiple deliveries.

25. An inference is drawn and a finding is made that,

since Zip to Zip failed to have a written contract for storage

of Ms. Painter’s household goods, which included the name,

telephone number, and physical address of the storage location,

Target VanLines was not aware as to which storage location

Ms. Painter’s household goods were located.

26. Prior to the failure of all of Ms. Painter’s household

goods being delivered, Target VanLines failed to provide

Ms. Painter with the name, physical address, or telephone number

of the storage facilities where her household goods were stored.

The Gregory Wood Situation

27. Around September 2007, Gregory S. Wood entered into a

contract with Authorized Movers to move his household goods from

his residence in Deltona, Florida to his new residence in

Bonifay, Florida, at an estimated cost of $4,530.00. The date

of the move was September 4, 2007. The contract was prepared on

August 29, 2007.

28. Among other things, the contract provided that access

for a 52-foot trailer was required. Authorized Movers

determined that, because of the quantity of household goods

being moved, a 52-foot trailer was required.

29. The cost of the move was charged to Mr. Wood’s credit

card before the moving date.

30. Prior to the moving date, Mr. Wood was contacted and

informed that, instead of a 52-foot trailer, two 26-foot trucks

would be used, with one arriving in the morning and the other

arriving later in the day for loading the remainder of the

household goods. He was not informed that he would be charged

for the second truck, in addition to the contract price, for the

move. Mr. Wood was informed on the day of the move that he

would be charged for the second truck.

31. The movers arrived at Mr. Wood’s Deltona residence on

September 4, 2007, to pack and load his household goods. The

movers arrived around 1:30 p.m. in a 26-foot truck that bore no

insignia to identify it as Authorized Movers, but the movers

wore t-shirts with the logo “Authorized Movers.” The movers

discussed additional packing charges for the quantity of packing

needed to be performed, but the movers never confirmed the

additional charges or specified an amount. The movers did not

present any additional documents for Mr. Wood to review or sign.

The second 26-foot truck arrived at Mr. Wood’s residence round

7:30 p.m., and the loading of the first 26-foot truck was

completed around 10:00 p.m. Mr. Wood decided that, with the

lateness of the hour and since he and his wife and child were

tired, he would decline the use of the second truck and proceed

to the new residence with what was loaded on the first truck.

32. On September 5, 2007, the movers arrived in the 26-

foot truck in the afternoon with Mr. Wood’s household goods at

his Bonifay residence. The movers refused to unload his

household goods unless Mr. Wood paid them $730.00 for

unspecified additional charges, which he paid with his credit

card. By paying with his credit card, Mr. Wood was charged an

additional $28.00 processing fee by the movers, totaling

$758.00.

33. The additional charge of $758.00 was processed as a

payment to Target VanLines. Not being aware of Target VanLines,

Mr. Wood questioned the designation of the payment to Target

VanLines; at that time, he was informed by the movers that they

were employed by Target VanLines. With the additional payment

being successfully processed, the movers unloaded Mr. Wood’s

household goods.

34. Target VanLines admits that it was paid the $758.00. 2

Target VanLines claims that the additional charge was for

additional services performed, such as packing materials and the

second truck. 3 This charge by Target VanLines was separate and

apart from the contract that Mr. Wood had with Authorized

Movers.

35. Mr. Wood’s contract was with Authorized Movers, not

Target VanLines. Target VanLines admits that it was acting as

an agent, i.e., a carrier, for Authorized Movers under the

contract between Mr. Wood and Authorized Movers. 4

36. The contract with Authorized Movers did not specify

any additional services or the additional amount paid to Target

VanLines.

37. Target VanLines did not prepare an additional written

estimate or contract for the moving services that it performed.

38. Authorized Movers refunded the $758.00 to Mr. Wood.

Furthermore, Authorized Movers deducted the $758.00 from the

amount due Target VanLines for the services that Target VanLines

rendered as Authorized Movers’ agent.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2008).

40. The Department has the burden of proof to show by

clear and convincing evidence that Target VanLines committed the

offenses set forth in the Administrative Complaint. Department

of Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

41. Section 507.01, Florida Statutes (2007), provides

definitions for Chapter 507, Florida Statutes (2007), and

provides in pertinent part:

(1) "Accessorial services" means any

service performed by a mover which results

in a charge to the shipper and is incidental

to the transportation or shipment of

household goods, including, but not limited

to, valuation coverage; preparation of

written inventory; equipment, including

dollies, hand trucks, pads, blankets, and

straps; storage, packing, unpacking, or

crating of articles; hoisting or lowering;

waiting time; carrying articles excessive

distances to or from the mover's vehicle,

which may be cited as "long carry"; overtime

loading and unloading; reweighing;

disassembly or reassembly; elevator or stair

carrying; boxing or servicing of appliances;

and furnishing of packing or crating

materials. The term includes services not

performed by the mover but performed by a

third party at the request of the shipper or

mover, if the charges for these services are

to be paid to the mover by the shipper at or

before the time of delivery.

* * *

(4) "Contract for service" or "bill of

lading" means a written document approved by

the shipper in writing before the

performance of any service which authorizes

services from the named mover and lists the

services and all costs associated with the

household move and accessorial services to

be performed.

(5) "Department" means the Department of

Agriculture and Consumer Services.

(6) "Estimate" means a written document

that sets forth the total costs and

describes the basis of those costs, relating

to a shipper's household move, including,

but not limited to, the loading,

transportation or shipment, and unloading of

household goods and accessorial services.

(7) "Household goods" or "goods" means

personal effects or other personal property

commonly found in a home, personal

residence, or other dwelling, including, but

not limited to, household furniture. The

term does not include freight or personal

property moving to or from a factory, store,

or other place of business.

(8) "Household move" or "move" means the

loading of household goods into a vehicle,

moving container, or other mode of

transportation or shipment; the

transportation or shipment of those

household goods; and the unloading of those

household goods, when the transportation or

shipment originates and terminates at one of

the following ultimate locations, regardless

of whether the mover temporarily stores the

goods while en route between the originating

and terminating locations:

(a) From one dwelling to another dwelling;

(b) From a dwelling to a storehouse or

warehouse that is owned or rented by the

shipper or the shipper's agent; or

(c) From a storehouse or warehouse that is

owned or rented by the shipper or the

shipper's agent to a dwelling.

(9) "Mover" means a person who, for

compensation, contracts for or engages in

the loading, transportation or shipment, or

unloading of household goods as part of a

household move. The term does not include a

postal, courier, envelope, or package

service that does not advertise itself as a

mover or moving service.

* * *

(12) "Shipper" means a person who uses the

services of a mover to transport or ship

household goods as part of a household move.

(13) "Storage" means the warehousing of a

shipper's goods while under the care,

custody, and control of the mover.

(emphasis in original)

42. Section 507.05, Florida Statutes (2007), titled

“Estimates and contracts for service,” provides in pertinent

part:

Before providing any moving or accessorial

services, a contract and estimate must be

provided to a prospective shipper in

writing, must be signed and dated by the

shipper and the mover, and must include:

(1) The name, telephone number, and

physical address where the mover's employees

are available during normal business hours.

(2) The date the contract or estimate is

prepared and any proposed date of the move.

(3) The name and address of the shipper,

the addresses where the articles are to be

picked up and delivered, and a telephone

number where the shipper may be reached.

(4) The name, telephone number, and

physical address of any location where the

goods will be held pending further

transportation, including situations where

the mover retains possession of goods

pending resolution of a fee dispute with the

shipper.

(5) An itemized breakdown and description

and total of all costs and services for

loading, transportation or shipment,

unloading, and accessorial services to be

provided during a household move or storage

of household goods.

(6) Acceptable 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 must clearly and conspicuously

disclose to the shipper in the estimate and

contract for services the forms of payments

the mover will accept, including the forms

of payment described in paragraphs (a)-(c).

43. Zip to Zip and Target VanLines were each a mover as

defined in Section 507.01(9), Florida Statutes (2007).

44. Ms. Painter and Mr. Wood were each a shipper as

defined in Section 507.01(12), Florida Statutes (2007).

45. Regarding Ms. Painter, Zip to Zip contracted with

Ms. Painter to move her household goods, store them, and move

them to her new residence, once she located a new residence; all

for a fee. Therefore, Zip to Zip provided her accessorial

services, as defined in Section 507.01, Florida Statutes (2007).

Zip to Zip failed to include in the written contract with

Ms. Painter the name, telephone number, and physical address of

the location where her goods were to be stored.

46. Target VanLines took over the business of Zip to Zip,

including the storage. Target VanLines provided storage for

Ms. Painter’s household goods for a fee, and, therefore,

provided her accessorial services. § 507.01(1), Fla. Stat.

(2007).

47. Target VanLines was aware that Zip to Zip failed to

include in the written contract with Ms. Painter the name,

telephone number, and physical address of the location where her

goods were stored.

48. Target VanLines failed to provide Ms. Painter a

written contract for accessorial services, which included the

name, telephone number, and physical address of the locations

where her goods were stored.

49. The evidence demonstrates that Target VanLines

violated Section 507.05(4), Florida Statutes (2007).

50. As to Mr. Wood, the additional charge of $730.00 by

Target VanLines for additional services performed, such as

packing materials and the second truck, was separate and apart

from the contract that Mr. Wood had with Authorized Movers and

from Target VanLines’ status as an agent for Authorized Movers.

51. Target VanLines provided the additional services to

Mr. Wood without a written contract and estimate.

52. The evidence demonstrates that Target VanLines

violated Section 507.05, Florida Statutes (2007).

Penalty

53. Section 507.09, Florida Statutes (2007), provides in

pertinent part:

(1) The department may enter an order doing

one or more of the following if the

department finds that a mover or moving

broker, or a person employed or contracted

by a mover or broker, has violated or is

operating in violation of this chapter or

the rules or orders issued in accordance

with this chapter:

(a) Issuing a notice of noncompliance under

s. 120.695.

(b) Imposing an administrative fine not to

exceed $ 5,000 for each act or omission.

(c) Directing that the person cease and

desist specified activities.

(d) Refusing to register or revoking or

suspending a registration.

(e) Placing the registrant on probation for

a period of time, subject to the conditions

specified by the department.

(2) The administrative proceedings which

could result in the entry of an order

imposing any of the penalties specified in

subsection (1) are governed by chapter 120.

(3)The department may adopt rules under ss.

120.536(1) and 120.54 to administer this

chapter.

54. The Department suggests an administrative fine of

$5,000.00 per violation, totaling $10,000.00.

55. As to the violation of Section 507.05(4), Florida

Statutes (2007), involving Ms. Painter’s situation, under the

circumstances of that situation, an administrative fine of

$5,000.00 is too severe. The evidence demonstrates, among other

things, that Target VanLines was not the original mover but took

over the business of the original mover after the original mover

had placed Ms. Painter’s household goods in storage; that the

original mover failed to include in the written contract the

name, telephone number, and physical address of the location of

the storage facility where her goods were being stored; that

Target VanLines became aware of the original movers failure, as

described above; and that Target VanLines failed to enter into a

written contract with Ms. Painter for accessorial services,

which included the name, telephone number, and physical address

of the location of the storage facility where her household

goods were stored. As a result, a more reasonable

administrative fine is $2,500.00

56. As to the violation of Section 507.05, Florida

Statutes, involving Mr. Wood’s situation, the Department’s

suggested administrative fine of $5,000.00 is reasonable.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Agriculture and Consumer

Services enter a final order:

1. Finding that Target VanLines, Inc. violated Sections

507.05 and 507.05(4), Florida Statutes (2007).

2. Imposing an administrative fine in the amount of

$5,000.00 for a violation of Section 507.05, Florida Statutes

(2007), and in the amount of $2,500.00 for a violation of

Section 507.05(4), Florida Statutes (2007).

DONE AND ENTERED this 15th day of October 2008, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of October, 2008.

ENDNOTES

1/ Some of Ms. Painter’s testimony was hearsay, as to what

occurred during her absence from the United States, which could

not be used to establish findings of fact.

2/ Mr. Kramerman has no first-hand knowledge of Mr. Wood’s

situation, but makes this admission based upon the exhibits

admitted into evidence and Mr. Wood’s testimony.

3/ Ibid .

4/ Ibid .

COPIES FURNISHED:

Eric H. Miller, Esquire

Department of Agriculture and

Consumer Services

2005 Apalachee Parkway

Tallahassee, Florida 32301

Yosef J. Kramerman, pro se

Target VanLines, Inc.

3201 Griffin Road, Suite 203

Fort Lauderdale, Florida 33312-6900

Honorable Charles H. Bronson

Commissioner of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Richard Ditschler, General Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

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.