09-003965 Global Express, Llc, D/B/A Auto Zone Auto Sales vs. Department Of Highway Safety And Motor Vehicles, Division Of Motor Vehicles Status: Closed Recommended Order on Monday, November 30, 2009.

Summary: The application for a motor vehicle dealer license should be denied based on willful misrepresentations of fact on the application and repeated violations of statutes regulating motor vehicle dealers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLOBAL EXPRESS, LLC, d/b/a )

AUTO ZONE SALES, )

)

Petitioner, )

)

vs. ) Case No. 09-3965

)

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference on October 14, 2009, between

West Palm Beach and Tallahassee, Florida, before Administrative

Law Judge Claude B. Arrington of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Johnny Romero, owner/manager

Global Express, LLC, d/b/a

Auto Zone Auto Sales

3710 Georgia Avenue

West Palm Beach, Florida 33405

For Respondent: Michael James Alderman, Esquire

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32399

Damaris Reynolds, Esquire

Post Office Box 540609

Lake Worth, Florida 33454

STATEMENT OF THE ISSUE

Whether Petitioner’s application for a motor vehicle dealer

license should be granted or denied.

PRELIMINARY STATEMENT

Petitioner applied to Respondent for the issuance of a

motor vehicle dealer license. By letter dated June 19, 2009,

Respondent notified Petitioner that it intended to deny its

application and stated the reasons therefor. Petitioner

thereafter timely requested a formal administrative hearing to

challenge the intended action, the matter was referred to DOAH,

and this proceeding followed.

At the final hearing, Petitioner presented the testimony of

Mr. Romero and offered 23 sequentially-numbered exhibits, each

of which was admitted into evidence. Respondent presented the

testimony of Diane J. Buck (Regional Administrator for

Respondent’s regional office that includes West Palm Beach,

Florida); Mildred Pierre-Lys (a compliance officer employed by

Respondent); Luz Irizarry (a compliance officer employed by

Respondent); and Teresa Pardons (a field supervisor employed by

Respondent). Respondent offered the following pre-marked

Exhibits, each of which was admitted into evidence: 1, 2, 4-10,

13-16, 18, and 21-23.

Unless otherwise noted, all statutory references are to

Florida Statutes (2009.

A Transcript of the proceedings, consisting of one volume,

was filed on October 29, 2009. Each party filed a Proposed

Recommended Order, which has been duly-considered by the

undersigned in the preparation of this Recommended Order.

After the close of the formal hearing, Respondent filed a

Motion for Official Recognition of certain Recommended Orders

and the ensuing Final Orders issued in conjunction with prior

DOAH proceedings. The Motion for Official Recognition is denied

as being untimely and unnecessary. As with any other relevant

authority cited by the parties, the undersigned is at liberty to

consider prior Recommended Orders and Final Orders.

FINDINGS OF FACT

1. Petitioner, Global Express, LLC. (Global Express), is a

limited liability company which has submitted to Respondent an

application for a license as a motor vehicle dealer under the

fictitious name of Auto Zone Auto Sales (the subject

application).

2. Johnny Romero and Rosangela Romero, who are husband and

wife, are the members and managers of Global Express.

Mr. Romero is also known as Johnny Guillermo Romero Peguero. 1

3. Both Mr. and Mrs. Romero signed the subject application

on behalf of Global Express before a notary public on May 4,

2009. The following language is contained above the signature

lines:

Under penalty of perjury, I do swear or

affirm that the information contained in

this application is true and correct . . .

4. Part 5 of the application form requires that the

“applicant, partner, or corporate officer or director” answer

yes or no to certain questions (the Certifications). Each

dealership officer is required to answer these questions under

penalties of perjury.

5. Relevant to this proceeding, both Mr. and Mrs. Romero

answered the following question in the negative:

Has this applicant, partner, or corporate

officer or director ever had a surety bond

cancelled?

6. Relevant to this proceeding, both Mr. and Mrs. Romero

answered the following question in the negative:

Has this applicant, partner, or corporate

officer or director ever been denied or had

a dealer license suspended or revoked in

Florida or any other jurisdiction?

7. In addition to the foregoing, Mr. and Mrs. Romero

answered the following question in the affirmative:

Has this applicant, partner, or corporate

officer or director ever been a licensed

dealer in Florida or any other jurisdiction?

8. Under their affirmative response Mr. and Mrs. Romero

inserted information reflecting that they had previously been

licensed dealers under the license numbered VI/1018283.

9. Pursuant to application executed by Mr. and Mrs. Romero

on January 11, 2007, Respondent issued motor vehicle dealer

license numbered VI/1018283 to Pronto Cars Corp. (Pronto).

10. Pronto’s motor vehicle dealer license bond was

cancelled by its surety, Nova Casualty Company, by notice dated

December 18, 2007.

11. Pronto’s motor vehicle dealer license was suspended by

Respondent by Order of Emergency Suspension and Administrative

Complaint dated March 20, 2008. That case was assigned the

following case number by Respondent: DMV-08-479. The Order

suspended Pronto’s motor vehicle dealer license because Pronto’s

surety had cancelled its bond.

12. There was a conflict in the evidence as to whether

Mr. Romero ever received a copy of the Emergency Final Order and

Administrative Complaint in case DMV-08-479. That conflict is

resolved by finding that Ms. Pierre-Lys, acting in her capacity

as a compliance officer for Respondent, served a copy of the

Order of Emergency Suspension and Administrative Complaint on

Mr. Romero on April 16, 2008.

13. Mr. Romero, on behalf of Pronto, signed and submitted

an election of rights form dated May 5, 2008, which provided, in

relevant part, as follows: “I have read the Administrative

Complaint filed in this matter [DMV-08-479] and understand my

options.” Immediately before Mr. Romero’s signature is a check

in a box indicating that Mr. Romero was exercising the following

option:

“I have not obtained a surety bond and

wish to voluntarily relinquish my motor

vehicle license. I have completed and am

returning the Voluntary Relinquishment of

License form within 21 days from the date of

my receipt of this administrative

complaint.”

14. On May 23, 2008, 2 Respondent issued its Final Order in

its case number DMV-08-479, thereby canceling Pronto’s motor

vehicle dealer’s license. The Final Order directed Pronto to

surrender its license and all dealer and temporary tags in its

possession. The Final Order also contained the following:

It is further ORDERED and ADJUDGED that

the Order of Emergency Suspension and

Administrative Complaint filed herein is

DISMISSED and this case is hereby CLOSED.

15. Mr. Romero called Respondent’s compliance officer, Luz

Irizarry, on March 6, 2009, told her that he wanted to obtain a

motor vehicle dealer license, and asked whether he would have to

go to a school for new dealers. Ms. Irizarry referred the

inquiry to Ms. Buck, who determined that Mr. Romero would have

to attend the school because Pronto had received consumer

complaints, Pronto’s surety had cancelled its bond, and Pronto’s

license had been suspended and subsequently revoked. On

March 9, 2009, Ms. Irizarry informed Mr. Romero of the reasons

he would have to go to dealer school, and specifically discussed

with him the fact that Pronto’s operations had been suspended.

16. When he signed the Certifications on May 4, 2009,

Mr. Romero had actual knowledge that Pronto’s surety bond had

been revoked and that Pronto’s motor vehicle dealer license had

been suspended. Mr. Romero’s contends that he was confused

about his answers because he thought he had bought the surety

bond for its full term and because he thought the Final Order

entered by Respondent dismissed the suspension of his license.

Those contentions are rejected. It is clear from his answer

pertaining to the license that had been issued to Pronto that

Mr. Romero understood as a principal of Pronto he would have to

disclose the revocation of Pronto’s surety bond and the

suspension of Pronto’s motor vehicle dealer license on the

subject application.

17. Mr. and Mr. Romero’s Certifications under section 5 of

the subject application pertaining to the revocation of a surety

bond and the suspension of a motor vehicle dealer license are

willful, material misrepresentations of fact.

18. On February 26, 2008, Respondent discovered that

Pronto had moved its business location and was doing business at

a location that had not been approved by Respondent.

19. On April 1, 2009, Mrs. Romero drove a motor vehicle

displaying a “For Sale” sign. The vehicle had a temporary tag

on it that had been issued to Pronto. The possession of that

temporary tag violated the Final Order entered in Respondent’s

case number DMV-08-479, which ordered Pronto to immediately

surrender all temporary tags to Respondent.

20. On April 27, 2009, Mrs. Romero displayed, or

acquiesced in the display of, another car with a “For Sale” sign

on it parked in front of Global Express’s proposed, but

unlicensed, location. That car had a temporary tag on it that

had been issued to Pronto. The temporary tag was filled out to

show the name of another dealer. The possession of that

temporary tag violated the Final Order entered in Respondent’s

case number DMV-08-479, which ordered Pronto to immediately

surrender all temporary tags to Respondent.

21. On April 2, 2009, Mr. Romero had 13 motor vehicles

titled in his name. Although he asserts that some of the motor

vehicles were bought in conjunction with a taxi service he

operated, he admitted that some of these vehicles had been

purchased for resale.

22. Mr. Romero acquired a 1966 Ford motor vehicle on

May 9, 209, and sold the vehicle on May 21, 2009.

23. Mr. Romero acquired a 1999 Chevrolet motor vehicle on

May 18, 2009, and sold the vehicle on May 25, 2009.

24. Mr. Romero acquired another Chevrolet motor vehicle on

May 20, 2008, and sold the vehicle on May 31, 2009.

25. Respondent established that during April and May 2009,

Mr. Romero engaged in the business of dealing in motor vehicles

without a license.

26. On March 30, 2009, Mr. Romero paid Respondent for the

registrations of ten motor vehicles with worthless checks.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter parties to this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

28. Pursuant to the provisions of Section 320.27, Florida

Statutes, Respondent is the agency of the State of Florida

responsible for the licensing and regulation of motor vehicle

dealers.

29. This is a de novo proceeding designed to formulate

final agency action. See Hamilton County Bd. of County Com’rs

v. State Dep’t. Environmental Reg. , 587 So. 2d 1378 (Fla. 1st

DCA 1991) and § 120.57(1)(k), Fla. Stat.

30. Petitioner has the burden of proving by a

preponderance of the evidence that the subject application

should be granted. See Department of Banking and Financing,

Division of Securities and Investor Protection , 670 So. 2d 932

(Fla. 1996); Florida Department of Transportation v. J. W. C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); and Florida

Department of Health and Rehabilitative Services v. Career

Service Commission , 289 So. 2d 412, 414 (Fla. 4th DCA 1974).

The preponderance of the evidence standard requires proof by

"the greater weight of the evidence," Black's Law Dictionary

1201 (7th ed. 1999), or evidence that "more likely than not"

tends to prove a certain proposition. See Gross v. Lyons , 763

So. 2d 276, 289 n.1 (Fla. 2000). A preponderance of the

evidence means that something is more probable than not. See

Fireman's Fund Indemnity Co. v. Perry , 5 So. 2d 862 (Fla. 1942).

31. Section 320.27(9)(a)1., Florida Statutes, authorizes

Respondent to deny an application for a motor vehicle dealer

license if the applicant has committed a “willful

misrepresentation” in the application. There is no statutory

definition of the term “willful misrepresentation” relevant to

this proceeding. There is no doubt that the subject application

contained two separate misrepresentations of fact, one

pertaining to the revocation of Pronto’s surety bond and the

other pertaining to the suspension of Pronto’s motor vehicle

dealer's license. Counsel for Respondent represents that there

has been no judicial interpretation of the term “willful

Statutes, and the undersigned has been unable to find such an

interpretation. Consequently, in determining whether the

misrepresentations in the subject application were “willful”

misrepresentations, the plain meaning of the term “willful” will

be utilized. “Willful” acts are deliberate acts. See The

American Heritage Dictionary of the English Language (Houghton

Mifflin Co., 1981) (at page 1466). Willful acts are those done

voluntarily, knowingly and intentionally, as opposed to acts

that are accidental or unintentional. There can be little or no

doubt that Mr. Romero knew that Pronto’s surety bond had been

revoked and that Pronto’s motor vehicle dealer’s license had

been suspended and voluntarily relinquished when he signed the

Certifications on May 4, 2009. There also can be little or no

doubt that the two misrepresentations discussed above were

willful misrepresentations within the meaning of the cited

statute.

32. Section 320.27(2), Florida Statutes, provides, in

part, as follows:

(2) LICENSE REQUIRED.--No person shall

engage in business as, serve in the capacity

of, or act as a motor vehicle dealer in this

state without first obtaining a license

therefor in the appropriate classification

as provided in this section. . . .

33. Respondent proved that, without the requisite license,

Mr. and Mrs. Romero engaged in the business as a motor vehicle

dealer in April and May of 2009, in violation of Section

320.27(2), Florida Statutes.

34. Section 320.27(3), Florida Statutes, requires a motor

vehicle dealer to describe the exact location of its business

and requires a supplemental license to operate at premises other

than the licensed premises. Respondent proved that Mr. and

Mrs. Romero violated that provision by moving Pronto from its

licensed premises to an unlicensed location.

35. Section 320.18(1), Florida Statutes, provides that

Respondent can cancel any registration if the registration was

paid for by a check that was later dishonored. Mr. Romero paid

Respondent for ten vehicle registrations with checks that were

later dishonored. As a consequence, those registrations were

cancelled.

36. Pursuant to Section 320.27(9)(b)17, Florida Statutes,

Respondent may deny a motor vehicle dealer license upon proof

that “. . . a licensee has committed, with sufficient frequency

so as to establish a pattern of wrongdoing on the part of a

licensee . . .” violations of Chapter 320, Florida Statutes.

Respondent established by the requisite standards that Mr. and

Mrs. Romero committed multiple violations of Chapter 320,

Florida Statutes, which, taken together, constitute a pattern of

wrongdoing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent Department of Highway

Safety and Motor Vehicles enter a final order adopting the

Findings of Fact and Conclusions of Law contained in this

Recommended Order. It is further RECOMMENDED that the final

order deny the subject application.

DONE AND ENTERED this 30th day of November, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

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 30th day of November, 2009.

ENDNOTES

1 / Mr. Romero signed some documents referenced in this

proceeding using the last name of Romero and others using the

last name of Peguero. No distinction has made in this

Recommended Order because there is no dispute that Mr. Romero is

the individual who signed all documents attributed to him in

this Recommended Order. Respondent does not assert, and the

undersigned does not infer, that Mr. Romero used two last names

for a nefarious purpose.

2 / The signature date on the Final Order in case DMV-08-479 has

an incorrect date of January 23, 2008. For the reasons cited by

Respondent in its Proposed Recommended Order, the undersigned

finds that this incorrect date is the result of a scrivener’s

error. The correct date is May 23, 2008.

COPIES FURNISHED :

Johnny Romero

Global Express, LLC, d/b/a

Auto Zone Auto Sales

3710 Georgia Avenue

West Palm Beach, Florida 33405

Michael James Alderman, Esquire

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32399

Damaris Reynolds, Esquire

Department of Highway Safety and

Motor Vehicles

Post Office Box 540609

Lake Worth, Florida 33454

Electra Theodorides-Bustle, Executive Director

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399

Robin Lotane, General Counsel

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399

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.