19-005838 Department Of Agriculture And Consumer Services vs. Florida Licensed Moving Corporation Status: Closed Recommended Order on Tuesday, May 5, 2020.

Summary: Respondent's application to serve as a household mover should be denied due to an unsatisfied civil fine and a pending enforcement action for conduct involving fraud, dishonest dealing, and violations of chapter 507.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF A GRICULTURE A ND

C ONSUMER S ERVICES ,

Petitioner ,

Case No. 19 - 5838

vs.

F LORIDA L ICENSED M OVING

C ORPORATION ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this case was conducted before

Administrative Law Judge Mary Li Creasy by video teleconference with

locations in West Palm Beach and Tallahassee, Florida on January 21 , 20 20 .

A P PEARANCES

For Petitioner: Genevieve Hall, Esquire

Amanda B. McKibben, Esquire

Department of Agriculture and Consumer Services

407 South Calhoun Street , Suite 520

Tallahassee, Florida 32399 - 6587

For Respondent: Donald Goldrich, Es quire

Donald S. Goldrich, P.A.

5177 Northwest 74th Manor

Coconut Creek, Florida 33073 - 2734

S TATEMENT OF T HE I SSUE

Whether Respondent's renewal application for registration as an

i ntrastate m over should be denied for the reasons set fort h in the

September 23, 2019, Denial of Application Letter.

P RELIMINARY S TATEMENT

On September 23, 2019, Petitioner, Department of Agriculture and

Consumer Services ( Ñ the Department Ò ) , notified Respondent, Florida

Licensed Moving Corporation, of its denial of RespondentÔs registration as an

intrastate m over under c hapter 507, Florida Statues, due to litigation

pending in Seminole County ( Ñ Denial Letter Ò ) . In addition, the registration

was denied due to RespondentÔs alleged false statements contained within t he

application.

Respondent timely contested the denial and the request for administrative

hearing was forwarded to the Division of Administrative Hearings ( Ñ DOAH Ò )

on November 1, 2019. The final hearing was held as scheduled on

January 21, 2020.

Petitioner presented the testimony of Cindy Quincy, Regulatory

Consultant. Petit ionerÔs Exhibits A through E were admitted into evidence.

RespondentÔs owner, James Fischer, testified on behalf of Respondent.

Respondent offered no exhibits.

The parties declined to or der a transcript of the proceedings. The parties

timely filed proposed recommended orders , which were taken into

consideration in the preparation of this Recommended Order. All references

to statu t es are to the version in effect i n 2019 unless otherwise no ted.

F INDINGS OF F ACT

1. The Department is the state agency responsible for permitting and

regulating household moving services in the State of Florid a.

2. Respondent is a Florida corporation and conducts household moving

services to the general public .

H arwood Case

3. Respondent is a named Defendant in the case of Susan Harwood v

Licensed Interstate Transport Corporation and Florida Licensed Moving

Corporation , filed in Seminole County Circuit Court, under Case No. 2019 -

CA - 000309 - 16 - G ( Ñ Harwood Case Ò ) . Th e case alleged a breach of contract

action for damages and violations of c hapter 507.

4. On June 20, 2019, a default judgment was entered against Respondent

in the Harwood C ase in the amount of $30,000.00 , representing a $5,000 .00

civil penalty for each of the six separate violations of c hapter 507, which also

constitute deceptive and unfair trade practices under sections 501.201 -

501.213, Florida Statutes, the " Florida Deceptive and Unfair Trade Practices

Act, " $800.00 in actual dam a g es for breach of contra ct, plus an award of

costs , and interest.

5. Respondent asserts it was not properly served in the Harwood C ase and

was not aware of the judgment until notified by the Denial Letter issued in

this case on September 23, 2019.

6. After receipt of the Denial Letter, Respondent immediately filed a

Motion to Set Aside Default Judgment in the Harwood Case, which as of the

date of the final hearing, had not been set for hearing . The judgment remains

unpaid by Respondent.

Enforcement Action

7 . On September 14, 2018 , t he Department filed an enforcement action

against Respondent in Seminole County Case No. 2018 - CA - 002516. The

allegations contained in the pleading allege multiple violations of

c hapter 507, including allegations that Respondent engaged in fraudulent

and dishonest acts while operating as a mover. This case is currently

pending.

8. More specifically, this action alleges multiple acts of fraud,

misrepresentation, or failure to disclose material facts to customers in

violation of c hapter 507. R espondent alle ged ly engage d in Ñ hostage moves Ò Ï

the practice of providing a lo w - ball cost estimate s for moving and storage ,

then refusing to relinquish the goods without requiring greater amount s .

Respondent also alleged ly resorted to threats for excessive payment s , fa il ed

to provide es timates or contracts prior to move s , refus ed to accept credit card

payments, and failed to maintain insurance coverage.

Alleged False Statements in Application

9. As part of its basis to deny RespondentÔs application, the Department

asserts that Respondent was dishonest in the renewal application to be a

registered mover. It is a violation of section 507.02 to knowingly make a false

statement, representation , or certification in any application required to be

submitted under c hapter 5 07.

10. T he application contained two questions upon which the Department

based its denial , which read as follows:

a. Has this person not satisfied a civil fine or

penalty arising out of any administrative or

enforcement action brought by any governm ent

agency or private person based upon conduct

involving fraud, dishonest dealing or any act of

moral turpitude?

b. Does this person have a pending criminal,

administrative, or enforcement proceeding in any

jurisdiction, based upon conduct involving fra ud,

dis honest dealing, or any act of m oral turpitude?

(emphasis added) .

11. RespondentÔs President, James Fischer, answered Ñ no Ò to these

questions , which were truthful and accurate. He understood the questions to

be specifically asked to the indivi dual submitting the application on behalf of

the ent ity applying. In fact , these questions appear o n the application under

the heading, Ñ Owner/Management Information. Ò Mr. Fischer did not

knowingly make any false statements. There was no un satisfied judgme nt

against Mr. Fischer , nor was there a pending case against him when the

application was made.

12. As to question (a) above, Mr. Fischer had no knowledge that there was

a judgment from the Harwood C ase when he answered the question

truthfully.

13. The questions were poorly worded and used the word Ñ person Ò instead

of using the word Ñ applicant . Ò The failure of the wording should not be

construed against Respondent.

C ONCLUSIONS OF L AW

14 . DOAH has jurisdiction over the subject matter and the part ies to this

proceeding. §120.569 and §120.57(1), Fla. Stat .

15. Chapter 507 regulates h ousehold m oving services. Pursuant to

section 507.03, the Department is charged with registrations and denial of

registrations for those entities seeking to register as a household mover.

16. Under section 507.03(8), the D epartment may deny, refuse to renew,

or revoke the registration of any mover or moving broker based upon a

determination that the mover or moving broker, or any of the moverÔs or

moving brokerÔs director s, officers, owners or general partners:

c. Has not satisfied a civil fine or penalty arising

out of any administrative or enforcement action

brought by any governmental or private person

based upon conduct involving fraud, dishonest

dealing, or any viola tion of this chapter;

d. Has pending against him or her any criminal,

administrative or enforcement proceeding in any

jurisdiction based upon conduct involving fraud,

dishonest dealing, or any act of moral turpitude.

17. Because the Department is r efusing to renew RespondentÔs status as a

household mover, the Department has the burden of proof in this proceeding

and must show by cle a r and convincing evidence that Respondent committed

the acts alleged in the Administrative Complaint. DepÔt of Banking and Fin.,

Div. of Se c. and Inv'r Prot. v. Osborne Stern and Co. , 670 So. 2d 932 (Fla.

1996).

18. It is unconteste d that the fine in the Harwood C ase remains unpaid .

Nor has it been set aside. Similarly, it is uncontested that there is an

enforcement proceeding pending involving allegations of fraud and dishonest

dealing. The Department has met its burden by proving by clear and

convincing evidence that the denial of RespondentÔs application to be a

household mover was valid and as such, the denial sho uld be upheld.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department enter a Final Order denying

RespondentÔs renewal application to provide household moving services .

D ONE A ND E NTERED this 5 th day of May , 2020 , in Tallahassee, Leon

County, Florida.

S

M ARY L I C REASY

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 5th day of May , 2020 .

C OPIES F URNISHED :

Genevieve Hall, Esquire

Department of Agriculture and Consumer Services

407 South Calhoun Street , Suite 520

Tallahassee, F lorida 32399 - 6587

(eServed)

Donald Goldrich, Esquire

Donald S. Goldrich, P.A.

5177 Northwest 74th Manor

Coconut Creek, Florida 33073 - 2734

(eServed)

Amanda B. McKibben, Esquire

Department of Agriculture and Consumer Services

407 South Calhoun Street , S uite 520

Tallahassee, Florida 32399 - 6587

(eServed)

Steven Hall, General Counsel

D epartment of A griculture and C onsumer S ervices

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

Honorable Nicole Ñ Nikki Ò Fried

Commissioner of Agriculture

D epartment of A griculture and Consumer S ervices

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.