20-004380 Department Of Agriculture And Consumer Services vs. Robert J. Arthur, D/B/A Mustang Speed And Restoration Status: Closed Recommended Order on Thursday, February 25, 2021.

Summary: Petitioner proved Respondent violated statutes. Recommend $4,000.00 fine and cease and desist order.

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. 20 - 4380

vs.

R OBERT J. A RTHUR , D/B/A M USTANG

S PEED A ND R ESTORATION ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, Administrative Law Judge Lynne A. Quimby - Pennock

of the Division of Administrative Hearings (DOAH) conducted a disputed - fact

evidentiary hearing by Zoom conference from Tallahassee , Florida, on

January 20, 2021.

A PPEARANCES

For Petitioner: Genevieve Hall, Esquire

Department of Agriculture

and Consumer Services

407 Calhoun Street

Tallahassee, Florida 32399

For Respondent: Robert J. Arthur, pro se

Ro bert J. Arthur, d/b/a Mustang

Speed & Restoration

12545 44th Street North, Suite D

Clearwater, Florida 33762

S TATEMENT OF T HE I SSUE S

Whether Respondent committed the acts alleged in the Administrative

Complaint; and, if so, what penalt y should be imposed.

P RELIMINARY S TATEMENT

The Department of Agriculture and Consumer Services, Division of

Consumer Services (Department or Petitioner) , alleged in an Administrative

Complaint (AC) dated August 18, 2020, 1 that Respondent Robert J. Arthur

d /b/a Mustang Speed and Restoration (Respondent) violated various

provisions of chapter 559, Florida Statutes (20 19 ). On September 17, 2020,

RespondentÔs Election of Rights form requesting a ÑFormal HearingÒ was

received by the Department.

On October 2, 20 20, the Department referred the matter to DOAH for the

assignment of an administrative law judge to conduct the hearing. The final

hearing was initially scheduled for December 3, 2020, but was continued once

at PetitionerÔs request. 2 The hearing was resche duled for January 20, 2021 ,

and completed on that date.

Prior to taking testimony, PetitionerÔs counsel moved ore tenus for

PetitionerÔs request for admissions to be deemed admitted. 3 After hearing

argument s from both parties, the undersigned declined to deem the

admissions admitted, and testimony was heard.

1 The Certificate of Service attached to the AC provides that it had Ñbeen furnished by UPS

on this 18 th day of March, 2020, toÒ Respondent. The discrepancy in the date of service and

the date the AC was signed was not explained.

2 Petition erÔs P roposed R ecommended O rder incorrectly provides that the hearing was

continued by an Ñagreement of the parties.Ò PetitionerÔs counsel filed a ÑMotion to ContinueÒ

on November 13, 2020, citing a conflict created when a circuit court judge scheduled a

s ummary judgment motion hearing for December 3, 2020. That motion provided Respondent

did Ñnot have an objection to the continuance.Ò

3 Apparently, PetitionerÔs ÑFIRST REQUESTS FOR ADMISSIONS TO RESPONDENTÒ was

served on Respondent on October 2, 2020. Pet itioner did not file a notice of serving the

discovery at that time, nor was there a timely pleading filed seeking to deem the requests

admitted prior to the hearing.

At the hearing, the Department presented the testimony of Victor James

Oddo and Alan Parkinson. PetitionerÔs Exhibits 1 through 9, 4 and 11 were

received into evidence without objection. Respondent t estified on his own

behalf and did not offer any exhibits into evidence.

At the conclusion of the hearing, the parties were informed of the ten - day

deadline provided by rule for filing proposed recommended orders (PROs)

after the final hearing transcript is filed with DOAH. The parties

acknowledged their understanding as to when to submit their PROs.

The transcript of the proceeding was filed with DOAH on February 8,

2021. The Department filed its PRO on February 12, 2021. To date,

Respondent has not fil ed a PRO. To the extent that the DepartmentÔs PRO

contained hearsay evidence not supported by direct testimony or evidence,

that information has not been relied on for any finding of fact .

All references to Florida Statutes or administrative rules are to the

versions in effect at the time of the action, except as otherwise indicated.

F INDINGS OF F ACT

Based on the testimony and documentary evidence presented at the final

hearing, the demeanor and credibility of the witnesses, and the entire record

of this proceeding, the following Findings of Fact are made:

1. Mr. Arthur is the owner of Mustang Speed and Restoration (MS&R), a

motor vehicle repair shop. MS&RÔs physical address is 12545 44th Street

North, Suite D, Clearwater, Florida.

4 Exhibit 9 is a composite exhibit of seven black and white photocopied photographs. Thr ee of

the photographs were identified as sand in the back seat of the Jeep; two photographs were

of the Jeep parked; one photograph identified a pair of ÑpinkÒ panties; and one photograph

contained two ÑZAFUL FOREVER YOUNG Ò tags. Only the photographs of th e parked Jeep and

the tags were clear.

2. Mr. Arthur filed a motor vehicle repair registration application to renew

MS&RÔs license in March 2019. The application contained MS&RÔs

registration number as MV87835. Additionally, the application contained the

following ÑApplication Certification:Ò

I certify that this app licant is aware of and

complies with all of the requirements of ss .

559.901 - 559.9221, F.S., including the repair

estimate and disclosure statement required to be

given to customers, and I am empowered to execute

this application on behalf of the above name d [sic]

entity or individual.

Mr. ArthurÔs name was printed below this statement along with his signature

(which Mr. Arthur acknowledged during his testimony), his title as Ñowner,Ò

his phone number, and the date: March 10, 2019. At all times relevant to this

case, MS&R held a valid motor vehicle repair shop license.

3. Sometime in 2019, Victor Oddo bought a 2002 Jeep Liberty (Jeep) from

M and K Auto. Mr. Oddo secured his vehicle license plate, numbered FL -

NBMD06, on the Jeep.

4. Shortly after the purchas e, the Jeep was not running smoothly.

Mr. Oddo contacted M and K Auto, explained the problem, and he was

directed to Respondent. Testimony at hearing did not adequately address the

extent of the problem, other than the check engine light was coming on.

5. During another appointment, Mr. Oddo paid Respondent $100 for a

valve gasket repair. When shown a copy of the MS&R invoice for the valve

gasket repair, Mr. Arthur confirmed it was an MS&R invoice but , testified he

had Ñnever seen that invoice, no. I donÔt know anything about a valve gasket

repair.Ò

6. In January 2020, the JeepÔs check engine light kept coming on.

Mr. Oddo brought the Jeep to Respondent. Mr. Arthur sent Mr. Oddo to a

different repair shop, Carl and Sons Repair Shop (C&S).

Based on informa tion provided, Mr. Oddo believed the repair would cost

$1,000 if done by C&S.

7. On Wednesday, January 15, 2020, Mr. Oddo returned his Jeep to

MS&R after Mr. Arthur stated he could do the repair for $380. The Jeep

remained in RespondentÔs possession until February 6, 2020, a period of

22 d ays.

8. Mr. Oddo communicated with Mr. Arthur via telephone and text

messages. Over the course of the 22 days the Jeep was at MS&R, Mr. Oddo

sought information about the status of the JeepÔs repairs and when it would

be returned to him .

9 . Respondent did not provide Mr. Oddo a written estimate for any work

to be completed on the Jeep. At no time did Mr. Oddo waive the preparation

of a written estimate. Mr. Arthur repeatedly claimed that the repair would be

paid for by M and K Auto, as Ñthe repairs were not done for the - - Mr. Oddo,

they were done for the lot.Ò

10. Mr. Oddo did not authorize Respondent or any of its employees to use

his Jeep for personal use. Between January 15, 2020 , and February 6, 2020,

Mr. Oddo never took physical possession of his Jeep.

11. On Thursday, January 23, 2020, at approximately 1:10 p.m., Mr. Oddo

took two photographs of his Jeep parked in front of a Speedway store. The

JeepÔs license plate confirmed it was Mr. OddoÔs vehicle. ( Pet. Ex. 9, p p 31 &

32.) This Speedway store is a block or more away from MS&R.

12. On February 6, 2020, Mr. Oddo picked up the Jeep from MS&R.

13. Respondent did not provide Mr. Oddo an invoice or billing statement

for any work that was completed on the Jeep.

14. Aft er picking up the Jeep on February 6, 2020, Mr. Oddo received a

parking ticket (Ticket One) in the mail. Ticket One was issued by the City of

Tampa for a parking infraction at Ben T. Davis beach. 5 The parking

5 A round - trip trek from MS&RÔs location to Ben T. Davis beach could not be more than 40

miles.

infraction occurred on Saturday, January 18, 20 20, at approximately

1:00 a.m., while the Jeep was in RespondentÔs possession. The JeepÔs license

number on Ticket One confirmed it was Mr. OddoÔs vehicle. Mr. Oddo

communicated with Mr. Arthur about Ticket One, and believed Mr. Arthur

would pay the $46.00 fine.

15 . Later, Mr. Oddo received another parking ticket (Ticket Two) in the

mail. Ticket Two was issued by the City of Clearwater for an expired parking

meter at a Clearwater beach. 6 The parking ticket was issued on January 18,

2020, at 5:11 p.m., while the Jeep was in RespondentÔs possession. The JeepÔs

license number on Ticket Two confirmed it was Mr. OddoÔs vehicle. Mr. Oddo

did not communicate with Mr. Arthur about Ticket Two as by that time,

Mr. Oddo had filed a complaint with Petitioner.

16 . Petiti onerÔs Exhibit 9, pages 27 through 29, purports to show sand on

the back seat of Mr. OddoÔs Jeep. While it is logical to assume that a vehicle

may have sand in it after a trip (or two) to the beach, or for that matter while

in Florida as a whole, the black and white photographs are not clear or

concise , but are unnecessary . That the Jeep was at each beach is established

by the two tickets .

17. After receiving the second ticket, Mr. Oddo checked his Florida

Sunpass transponder 7 account and discovered two ch arges while the Jeep

was at MS&R for repair. On Thursday, January 23, 2020, at approximately

11 a.m. , Mr. OddoÔs transponder account was charged $1.07 for his Jeep

traveling southbound on the Bob Graham Sunshine Skyway bridge (Skyway).

Later, at 12:25 p.m ., Mr. OddoÔs transponder account was again charged

$1.07 for the Jeep returning northbound on the Skyway.

18. Mr. Arthur testified that Mr. OddoÔs Jeep was taken for a round - trip

test drive to Sarasota, Florida, on January 23, 2020. The round - trip test dr ive

6 A round - trip trek from MS&RÔs location to a Clearwater beach could not be more than 4 0

miles .

7 Mr. Oddo referred to t his as his ÑSunshine Skyway pass.Ò

was approximately 82 miles in distance. Mr. Arthur attached a scanner to the

Jeep to determine Ñwhat the repair needed to be done.Ò The test drive was

also to pick up Ña check for a different repair for a car dealer.Ò Respondent

described this test dri ve using the phrase it Ñkilled two birds with one stone.Ò

19. Approximately 45 minutes after the Jeep returned from the Sarasota

test drive, the Jeep was photographed at the Speedway store front.

Mr. Arthur claimed the Jeep was on empty and had to be fill ed with gas. As

provided in paragraph 11 above, PetitionerÔs Exhibit 9, pages 31 and 32 , are

pictures of the Jeep parked in front of the Speedway store, not at a gas pump.

20. Prior to reclaiming his car, Mr. Oddo was led to believe from

Mr. Arthur that t he JeepÔs timing chain and the check engine light had been

repaired . H owever , that was not the case. Although the timing chain may

have been repaired or replaced, the check engine light stayed on.

21. When Mr. Oddo reclaimed his Jeep on February 6, 2020, h e claimed

there were Ñapproximately a thousand miles added to my odometer . Ò H e

failed to substantiate this claim with evidence of the odometer reading on the

Jeep when he dropped it at MS&R, compared to the odometer reading when

he reclaimed the Jeep. Furt her, Mr. Oddo confused the issue when he

testified:

My trip odometer only had 16 miles on it, and I

always reset my trip odometer when I fill up my

gas tank. My gas tank was empty with 16 miles, so

I - - I donÔt understand why the trip odometer has

to be r eset for a test drive at all.

22. Mr. Arthur admitted he never filled out or provided an estimate or

invoice for the repair work to Mr. OddoÔs Jeep. Mr. Arthur testified instead

that he was under the impression the repair work would be paid for by the

car dealer from whom Mr. Oddo bought the Jeep. Mr. Arthur testified:

We have an open contract, we are - - no shop under

any of the motor vehicle repair under

Mr. Williamson, [ 8 ] or anybody else, requires the car

dealer to come out here and sign the invoice on

every job.

* * *

And no shop that does car dealer wholesale work,

auto work, auction work, has the customer - - the

car dealer come down out of his office and sign a

repair order; itÔs a blanket contract, verbal contract.

We repair them, they pa y their bills, and

everybodyÔs happy.

* * *

Just in rebuttal, thereÔs not one car dealership, one

repair shop in the world that gets the car dealer or

the auction to sign an invoice on every single job.

ItÔs not possible. TheyÔre not going to com e down

out of their car lot to come down here and sign

every - - itÔs a blanket contract, verbal contract

valid under the State of Florida.

23. Petitioner did not present any disciplinary history regarding

Respondent.

C ONCLUSIONS OF L AW

2 4 . DOAH has juri sdiction over the parties to and the subject matter of

this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

See also § 559.921(4)(c), Fla. Stat.

25. The Department is the state agency responsible for registering and

regulating moto r vehicle repair shops under part IX of chapter 559.

26. The burden of proof is on the party asserting the affirmative of an

issue before an administrative tribunal. See DepÔt of Transp. v. J.W.C. Co.,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

8 The undersigned is not aware of who ÑMr. WilliamsonÒ may be; he did not testify during the

hearing.

27. In its A C, the Department seeks to impose an administrative fine and

other discipline against RespondentÔs license for violating section 559.920(3),

(12), (13), and (17). A proceeding to suspend, revoke, or impose other

discipline upon a license is penal in nature . State ex rel. Vining v. Fla. Real

Estate Comm Ô n , 281 So. 2d 487, 491 (Fla. 1973).

28. Accordingly, to impose such discipline, Petitioner must prove the

allegations in the AC by clear and convincing evidence. DepÔt of Banking &

Fin., Div. of Sec. & Invest or Prot. v. Osborne Stern and Co. , 670 So. 2d 932

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

29. As stated by the Supreme Court of Florida:

Clear and convincing evidence requires that the

evidence must be found to be credible; the fact s to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

lacking in confusion as to the facts at issue. The

evidence must be of such a weight that it produces

in the mind of the trier of fact a firm belief or

convic tion, without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden of proof may be met

where the evidence is in conflict; however, Ñ it seems to preclude evidence that

is ambiguous. Ò Westinghouse Elec. Corp. v. Shuler Bros., Inc ., 590 So. 2d 986,

988 (Fla. 1st DCA 1991).

30. Section 559.921(4) provides:

(a) The department may enter an order imposing

one or more of the penalties set forth in paragraph

(b) if the department finds that a motor vehicle

repair shop:

1. Violated or is operating in violation of any of

the provisions of this part or of the rules adopted or

orders issued thereunder;

2. Made a material false statement in any

application, document, or record required to be

submitted or retained under this part;

3. Refused or failed, or any of its principal officers

have refused or failed, after n otice, to produce any

document or record or disclose any information

required to be produced or disclosed under this part

or the rules of the department;

4. Made a material false statement in response to

any request or investigation by the department, the

Department of Legal Affairs, or the state attorney;

or

5. Has intentionally defrauded the public through

dishonest or deceptive means.

(b) Upon a finding as set forth in paragraph (a),

the department may enter an order doing one or

more of the following :

1. Issuing a notice of noncompliance pursuant to

s. 120.695.

2. Imposing an administrative fine in the Class I

category pursuant to s. 570.971 for each violation

for each act which constitutes a violation of this

part or a rule or order.

3. Directing that the MV repair shop cease and

desist specified activities.

4. Refusing to register or revoking or suspending

a registration.

5. Placing the registrant on probation, subject to

such conditions as the department may specify.

(c) The administrative pro ceedings which could

result in the entry of an order imposing any of the

penalties specified in paragraph (b) shall be

conducted in accordance with chapter 120.

3 1 . Section 559.920 provides in pertinent part:

Unlawful acts and practices. - It shall be a violation

of this act for any motor vehicle repair shop or

employee thereof to:

* * *

(3) Misrepresent that repairs have been made to a

motor vehicle;

* * *

(12) Fail or refuse to give to a customer a copy of

any document requiring the customerÔs signature

upon completion or cancellation of the repair work;

(13) Willfully depart from or disregard accepted

practices and professional standards;

* * *

(17) Perform any other act that is a violation of

this part or that constitutes fraud or

misrepresentation.

32. Section 559.905 provides in pertinent part:

(1) When any custo mer requests a motor vehicle

repair shop to perform repair work on a motor

vehicle, the cost of which repair work will exceed

$100 to the customer, the shop shall prepare a

written repair estimate, which is a form setting

forth the estimated cost of repair work, including

diagnostic work, before effecting any diagnostic

work or repair.

3 3 . The AC alleges four actions on RespondentÔs part:

• Respondent misrepresented that repairs had been made to the

Jeep, a violation of section 559.920(3);

• Respondent fail ed or refused to give a customer a copy of any

document requiring the customerÔs signature upon complet ion or

cancellation of the repair work, a violation of section 559.920(12);

• RespondentÔs actions Ñwillfully depart from or disregard accepted

practices a nd professional standards,Ò a violation of section 559.920(13);

and/or

• Respondent failed or refused to provide an estimate and/or invoice

of the repair work as required by sections 559.905 through 559.911, a

violation of section 559.920(17).

3 4 . Based on t he Findings of Fact above, Petitioner proved that

Respondent violat ed section 559 . 920(3), (12), (13), and (17).

3 5 . Mr. Arthur represented to Mr. Oddo that repairs had been made to the

Jeep, but the repairs were not made. A violation of section 559 . 920(3) .

36 . Mr. Arthur, on behalf of his motor vehicle repair shop, had certified in

the most recent renewal application that he was Ñaware of and complies with

all of the requirement s of ss . 559.901 - 559.9221 , F.S., including the repair

estimate and disclosure s tatement required to be given to customers.Ò

Mr. Arthur candidly admitted that no such estimate, invoice, or disclosure

statement was provided to Mr. Oddo, claiming instead, that no

documentation was necessary as there was a verbal contract with the car

de aler. Mr. ArthurÔs position flies in the face of the statutory language

requiring a customerÔs signature, whether it was Mr. Oddo or the proprietor

of the car lot where he bought the car. A violation of section 559 . 920(12).

37 . While in RespondentÔs posses sion, the J eep was driv en and parked at

two different locations, Ben T. Davis beach and Clearwater beach, neither of

which are at MS&RÔs physical location. A violation of section 559 . 920(13) and

(17).

38 . At the time of the incident s , the disciplinary guid elines, codified in

Florida Administrative Code Rule 5J - 12.007 provided that the normal

penalty range for minor violations was from an administrative fine of $100 to

$1,000 . F or major violations , the normal penalty range was from an

administrative fine of $300 to $1,000, to denial, suspension, or revocation of

the license. Major violations included any violation of section 559.920(1)

through (10), (12), and (16) through (18). See Fla. Admin. Code R. 5J -

12.007(8), effective January 1, 2020.

39 . Rule 5J - 12.00 7(5) provided that a penalty outside the normal range

was allowed when warranted by consideration of mitigating and aggravating

circumstances.

4 0 . PetitionerÔs AC seeks an administrative fine up to $1,000 per violation

for a total fine of $4,000, and a dir ective for Respondent to cease and desist

specified activities.

4 1 . Even though Respondent has no disciplinary history with the

Department, the proposed penalty is reasonable and appropriate under the

circumstances of this case.

R ECOMMENDATION

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

RECOMMENDED that the Department issue a final order that:

1. Finds Respondent guilty of violatin g section 559.920(3), (12), (13), and

(17), as alleged in the AC;

2. Impose s an administrative fine o f $4,000; and

3. Direct s Respondent to cease using consumer sÔ vehicles for unauthorized

business.

D ONE A ND E NTERED this 25th day of February , 2021 , in Tallahassee, Leon

County, Florida.

S

L YNNE A. Q UIMBY - P ENNOCK

Administrative Law Judge

1230 Apalachee P arkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25 th day of February , 2021 .

C OPIES F URNISHED :

Robert J. Arthur Genevieve Hall, Esquire

Robert J. Arthur, d/b/a Mustang Department of A griculture and

Speed & Re storation Consumer Services

12545 44th Street North , Suite D 407 Calhoun Street

Clearwater, Florida 33762 Tallahassee, Florida 32399

Steven Hall, General Counsel Honorable Nicole ÑNikkiÒ Fried

Department of Agriculture and Consumer Commissioner of Agriculture

Services Department of Agriculture and

407 South Cal houn Street , Suite 520 Consumer Services

Tallahassee, Florida 32399 - 0800 The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

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.