12-004123 Department Of Highway Safety And Motor Vehicles vs. Cohiba Motorsport, Inc. Status: Closed Recommended Order on Friday, May 31, 2013.

Summary: One sale of junked car during suspension of license of motor vehicle dealer does not constitute pattern of wrongdoing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, DIVISION OF )

MOTORIST SERVICES , )

)

Petitioner , ) Case No. 12 - 4123

)

vs. )

)

COHIBA MOTORSPORT, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

On April 26, 2013, Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings, conducted the

final hearing by videoconference in Tallahassee and Miami,

Florida.

APPEARANC ES

For Petitioner: Dennis S. Valente, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway

Tallahassee, Florida 323 99

For Respondent: Herminio Frometa

Qualified Representative

Cohiba Motorsport, Inc.

5800 Northwest 27th Avenue

Miami, Florida 33142

STATEMENT OF THE ISSUE

The issue is whether Respon dent engaged in business

activities requiring a motor vehicle dealer license while its

license was suspended.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 18, 2012,

Petitioner alleged that Respondent is a licensed motor vehicle

dealer, holding license number VI - 1005997. The Administrative

Complaint alleges that, in a separate proceeding, Petitioner had

suspended Respondent ' s license for 90 days, effective July 1,

2012 .

The Administrative Complaint alleges that, on or about

July 5, 201 2, Respondent sold a 2001 Subaru, VIN

4SBH806917627525, to Ramon Gomez, and, on or about August 12,

2012, Respondent sold a 2007 Suzuki, VIN KL5JD66Z97K644005, to

4A Body Shop, Inc. The Administrative Complaint alleges that

these transactions violated the suspension order , and Respondent

thus violated section 320.27(9)(b)8 . , Florida Statutes .

Respondent timely requested a hearing. At the hearing, the

Administrative Law Judge examined Herminio Frometa, who is the

president and owner of Respondent, and dete rmined that he was a

Qualified Representative.

At the hearing, Petitioner called three witnesses and

offered into evidence seven exh ibits: Petitioner Exhibits 1 - 7 .

Respondent called one witness and offered into evidence two

ex hibits: Respondent Exhibits 1 - 2 . All e xhibits were admitted

except Petitioner Exhibits 3 - 5, which were admitted, but not for

the truth, and Respondent Exhibits 1 - 2, which were not admitted

for any purpose . Both parties proffered their exhibits for all

purposes.

The parties did not order a transcript. On May 3, 2013,

Petitioner filed a proposed recommended order, which, due to

evidentiary problems that arose when the alleged purchaser of

the 2001 Subaru failed to appear at the hearing, addressed only

the alleged sale of the 2007 Su zuki. For this reason, the

Administrative Law Judge deems Petitioner to have abandoned the

allegations concerning the 2001 Subaru, and this recommended

order will address only the 2007 Suzuki.

FINDING S OF FACT

1. Respondent is a motor vehicle dealer that , at all

material times, has been located at 5800 Northwest 27th Avenue,

Miami. Except for the period of suspension discussed below, at

all material times, Respondent has been licensed to operate as a

motor vehicle dealer, holding license number VI - 100599 7.

2. In the course of business, Respondent acquired

possession of a 2007 Suzuki motor vehicle, bearing VIN

KL5JD66Z97K644005. Respondent acquired title to the Suzuki by a

state of Maryland Certificate of Salvage issued by Nationwide

Insurance on August 13, 2010. The certificate shows " damage

greater than 75% and repairable " and Respondent as the buyer.

3. Followin g an informal hearing on May 2 , 2012,

Petitione r issued a final order on June 18 , 2012, that, among

other penalties, suspended Respondent ' s m otor vehicle dealer

license for 90 days, effective July 1, 2012, for issuing more

than two temporary tags to the same person for the same vehicle,

in violation of section 320.27(9)(b)17, Florida Statut es, and

for issuing fraudulent temporary tags, in viola tion of section

320.131, Florida Statutes.

4. On August 12, 2012, Respondent sold the Suzuki to

4A Body Shop, Inc. On August 2, 2012, Respondent executed the

documentation necessary to complete this transaction.

CONCLUSIONS OF LAW

5. The Division of A dministrative Hearings has

jurisdiction over the subject matter. §§ 120.569, 120.75(1),

and 320.27(12), Fla. Stat.

6. No person may engage in the business of a motor vehicle

dealer without a license. § 320.27(2), Fla. Stat. Any person

who buys, sells, or deals in at least three motor vehicles in a

12 - month period is presumably a motor vehicle dealer.

§ 32 0.27(1)(c), Fla. Stat. Notwithstanding the suspension that

took effect on July 1, 2012, Respondent could not qualify the

August 12, 2012, transaction as a casual or isolated sale due to

the fact that it presumably had bought or sold at least two

other vehicles in the preceding 12 months.

7. Section 320.27(9)(b)8. provides for the discipline of a

motor vehicle license as follows:

(b) The department ma y deny, suspend, or

revoke any license issued hereunder or under

the provisions of s. 320.77 or s. 320.771

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 one or more of the

following activities:

* * *

8. Failure to continually meet the

requirements of the licensure law.

8. Petitioner must prove the material allegations by clear

and convincing evidence. Dep ' t of Bank. & Fin. v. Osborne Stern

& Co. , 670 So. 2d 932 (Fla. 1996).

9. The statutory precondi tion for suspension or revocation

of a motor vehicle license, under section 320.27(9)(b)8., is the

commission of violations that establish a pattern of wrongdoing

on the part of the licensee. In this case, the alleged

violations are the failure to continu ally meet the requirements

of the licensure law.

10. There are two problems with Petitioner ' s case. First,

Petitioner proved only a single violation . The statute requires

" violations " with " sufficient frequency so as to establish a

pattern of wrongdoing . " It is impossible to find a pattern of

wrongdoing based on the commission of a single wrongful act.

11. Second, the alleged violation is the failure to

continually meet the requirements of the licensing law. It is

unclear how a violation of a suspensi on order constitutes a

failure to continually meet the requirements of the licensing

law. Cf. Trevisani v. Dep ' t of Health , 90 So. 2d 1108 (Fla. 1st

DCA 2005).

12. Florida Administrative Code Rule 15C - 7.003(6)(d)8.d.

would have supplied the missing link as to this second problem .

This rule provides that, upon suspension of its license, a

licensed dealer shall " [c]ease operation of the business. " But

Petitioner failed to allege this ground in the Administrative

Complaint. Even if Petitioner had pleaded this rule, though,

its prosecution would have failed due to the lack of a pattern

of violations of the rule.

RECOMMENDATION

It is

RECOMMENDED that the Petitioner enter a final order

dismissing the Administrative Complaint.

DONE AND ENTERED this 31st d ay of May, 2013 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www. doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of May, 2013 .

COPIES FURNISHED :

Jennifer Clark, Agency Clerk

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 430

2900 Apalac hee Parkway, Mail Stop 61

Tallahassee, Florida 32399

Herminio Frometa

5800 Northwest 27 th Avenue

Miami, Florida 33142

Dennis S. Valente, Esquire

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway

Tallahassee, Florida 32399

Boyd Walden, Director

Division of Motor Vehicles

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B - 435

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0635

Steve Hurm, General Counsel

Department of Highway Safety

and Motor Vehicles

N eil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Florida 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.