91-000415 Department Of Highway Safety And Motor Vehicles vs. Bernard J. Haney, D/B/A Southern Auto Sales Status: Closed Recommended Order on Tuesday, August 27, 1991.

Summary: Agency failed to show that respondent acted fraudulently or wilfully misrepresented facts in application for license or that acts were of such frequency to establish pattern of wrongdoing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY )

SAFETY AND MOTOR VEHICLES, )

DIVISION OF MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0415

)

BERNARD J. HANEY, d/b/a )

SOUTHERN AUTO SALES, )

)

Respondent. )

____________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly

designated Hearing Officer, William R. Cave, held a formal hearing in the above-

captioned matter on June 26, 1991 in Lakeland, Florida.

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Rm. A432

Tallahassee, Florida 32399-0504

For Respondent: Charles R. Mayer, Esquire

Post Office Box 267

 Highland City, Florida 3384

STATEMENT OF THE ISSUES

Whether Respondent's independent motor vehicle dealer license should be

revoked or suspended under the facts and circumstances of this case.

PRELIMINARY STATEMENT

By an administrative complaint dated December 17, 1990 and filed with the

Division of Administrative Hearings on January 18, 1991, the Petitioner,

Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles

(Department) charged the Respondent, Bernard J. Haney d/b/a Southern Auto Sales

with violating Section 320.27(9)(b) and (q), Florida Statutes, and as grounds

therefor alleged: (a) that Respondent had been arrested several times under his

name and the name of William J. Butler; (b) that Respondent while using the name

William J. Butler was convicted of uttering a forged instrument, a felony, and

sentenced to four years confinement; and (c) that Respondent failed to

acknowledge or explain the arrests, conviction or use of fictitious personal

identification at anytime during the initial licensure or renewal application

process. Haney filed a Request For Administrative Proceeding with the

Department which, along with the Administrative Complaint, was referred to the

Division of Administrative Hearings for formal hearing, and this proceeding

ensued.

At the hearing, the Department presented the testimony of Neil C.

Chamberlin, Nathan Dawson and Gary Floyd (Floyd is not listed as a witness in

the Index of the transcript, however, he was called as the Department's witness

and his testimony begins on page 156 in Volume II of the transcript).

Department's exhibits 1, 2, 3 and 4 were received into evidence. Respondent

testified in his own behalf and presented the testimony of Carolyn McDaniel.

Respondent's composite exhibit 1 was received into evidence. Respondent's

Motion to Dismiss presented at the close of the Department's case in chief was

denied.

A transcript of this proceeding was filed with the Division of

Administrative Hearings on July 15, 1991. Additional time was allowed the

Respondent for filing his proposed findings of fact and conclusions of law and

such time added to the time within which the Recommended Order was to be filed.

The parties timely submitted their proposed findings of fact and conclusions of

law within the extended time frame. A ruling on each of the proposed findings

of fact have been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant findings of fact are made:

1. On November 16, 1987, the Respondent signed, under oath, an application

for an independent motor vehicle dealer license for the business name of

Southern Auto Sales which was submitted to the Department, and, based upon that

application, the Department issued an independent motor vehicle dealer license,

number 7VI-011359, to Respondent d/b/a Southern Auto Sales on November 30, 1987.

2. In the application referred to above, Respondent answered no to the

question, Has the applicant or any partner or corporate officer or director:

A. Been arrested on a felony or equivalent charge

anywhere?;

B. Been convicted of a felony or equivalent anywhere?

3. In 1988, 1989, and 1990, Respondent submitted to the Department a Short

Form Application, commonly referred to as a renewal application, and the

Department renewed license number 8VI-011359 in 1988, 9VI-011359 in 1989, and

0VI-011359 in 1990. The number before the prefix VI indicates the year of

issuance.

4. Respondent signed each of these renewal applications under oath wherein

the affirmation stated " . . . the information contained in this application is

true and correct and that nothing has occurred since I filed my last application

for a license or application for renewal of said license, as the case may be,

which would change the answers given in such previous application."

Additionally, the instructions for the renewal application advised the applicant

that the short form could be used if the applicant was currently licensed and,

among other things, there were no changes in the applicant's personal background

such a criminal conviction.

5. Respondent, currently holds an independent motor vehicle dealer

license, number 1VI-011359, issued by the Department on May 1, 1991.

6. Respondent, using the name William J. Butler, was arrested and charged

in December 1977 with uttering a forgery. The Respondent pled guilty to the

charge of uttering a forgery in April 1978 before the Circuit Court, Harrison

County, Mississippi and was sentenced to four years in the Mississippi

Department of Corrections.

7. In 1978, the Respondent, using the name William J. Butler, was arrested

and charged with uttering a forgery. Respondent was subsequently convicted and

sentenced by the Circuit Court, Jackson County, Mississippi to four years in the

Mississippi Department of Corrections, said sentence to run concurrently with

the sentence imposed by the Circuit Court, Harrison County, Mississippi.

8. William J. Butler and Bernard J. Haney, the Respondent in this case,

are one in the same person.

9. On October 25, 1979, after serving only approximately 1 1/2 years of

the two four-year sentences, Respondent was paroled by the Mississippi Parole

Board with conditions for supervision made a part of the parole.

10. In 1981 Respondent sought and received treatment for alcoholism,

having been an alcoholic for a period of twenty years. After treatment, with

the help of Alcoholics' Anonymous, Respondent has maintained a life of sobriety.

11. In November 1988 a Warrant for Retaking a Paroled Prisoner was issued

against Respondent, and he was recommitted to the Mississippi Department of

Corrections for "absconding supervision" of his parole. However, with the help

of some "new" friends, gained after his treatment for alcoholism, Respondent was

incarcerated for only a short period, and was "honorably discharged" from the

Mississippi Department of Corrections on December 20, 1984.

12. The Harrison County charge of uttering a forgery was in connection

with a check for $169.92, and the Jackson County charge of uttering a forgery

was in connection with a check for $139.36.

13. There is nothing stated in the Discharge Certificate that should have

led the Respondent to believe or understand that his criminal record had been

expunged and his rights restored upon receiving his "honorable discharge" from

the Mississippi Department of Corrections in December 1984. However,

considering the circumstances surrounding his commitment in the first place, his

recommitment in 1984 and his immediate release thereafter, Respondent's

testimony that such was his belief and understanding is credible.

14. There is insufficient evidence to show that at the time of his initial

application for licensure in 1987 or at the time of his renewal applications in

1988, 1989 and 1990, that Respondent acted fraudulently or willfully

misrepresented the facts when he answered no to the questions concerning any

prior arrests or convictions for a felony.

15. After the release in 1979 and up to the date of his initial

application for licensure, the Respondent's criminal record is clear except for

the arrest in 1984 where the charges were dropped but the arrest resulted in his

recommitment. From the date of his initial application until the date of the

hearing the Respondent's criminal record is clear except for an arrest in 1990

concerning charges of tampering with an odometer. Apparently, these charges

have been dropped and the matter handled civilly through the Polk County Citizen

Dispute Settlement Center.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, this proceeding pursuant to Section

120.57(1), Florida Statutes.

17. Section 320.27(9), Florida Statutes, empowers the Department to

suspend or revoke the license of the Respondent upon proof that he has failed to

comply with any of the enumerated acts listed in Section 320.27(9)(a) through

(5), Florida Statutes, with sufficient frequency so as to establish a pattern of

wrongdoing on the part of the Respondent.

18. The administrative complaint charges Respondent with violating Section

320.27(9)(b) and (q), Florida Statutes, which provides as follows:

(b) Commission of fraud or willful

misrepresentation in application for or in

obtaining a license.

. . . .

(q) Conviction of a felony.

19. In disciplinary proceedings, the burden is upon the regulatory agency

to establish facts upon which its allegations of misconduct are based by clear

and convincing evidence. Ferris v. Turlington, 510 So.2d 293 (Fla. 1987). In

the instant case the Department has clearly shown that Respondent was charged,

arrested and convicted on two separate charges of uttering a forgery which is a

felony and sentenced to two four-year sentences. Also, the Department has

clearly shown that Respondent failed to advise the Department of his arrests and

the felony convictions in his initial application in 1987 wherein he obtained an

independent motor vehicle dealer license. What the Department has not clearly

shown is that: (a) the Respondent acted fraudulently or willfully misrepresented

facts in filing his initial application for licensure and renewals thereof; or

(b) the Respondent's failure to comply with the provisions of Section

320.27(9)(b) and (q), Florida Statutes, was with such sufficient frequency so as

to establish a pattern of wrongdoing on his part. The Department has failed to

sustain its burden of proof.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, it

is,

RECOMMENDED that the Department enter a Final Order dismissing the

administrative complaint filed herein.

DONE and ENTERED this 27th day of August, 1991, in Tallahassee, Florida.

_________________________________

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of August, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section

120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted

by the parties in the case.

Rulings on Proposed Finding of Fact

Submitted by the Petitioner

1. - 9. Adopted in Findings of Fact 5, 6, 7, 8, 1, 1, 2, 3, and 4,

respectively.

10. Stated more as an argument than a finding of fact, otherwise rejected

since there was no substantial competent evidence in the record to prove that

there was fraudulent or willful misrepresentation of the facts in the

application.

Rulings on Proposed Findings of Fact

Submitted by the Respondent

Respondent's Proposed Recommended Order is divided into three principal

parts: (a) Proposed Findings of Fact; (b) Comments on Testimony and Evidence;

and (c) Proposed Conclusions of Law. Only the Proposed Findings of Fact will be

addressed to in this Appendix.

1. Adopted in substance in Finding of Fact 1.

2. - 3. Unnecessary.

4. Adopted in substance in Finding of Fact 1.

5. - 7. Covered in Preliminary Statement.

8. Conclusion of Law.

9. Covered in the Preliminary Statement, otherwise unnecessary.

10. Covered in the Preliminary Statement.

11. - 12. Covered in the Preliminary Statement, otherwise unnecessary or

not material or relevant.

COPIES FURNISHED:

Michael J. Alderman, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Rm. A432

Tallahassee, FL 32399-0504

Charles R. Mayer, Esquire

Post Office Box 267

Highland City, FL 33846

Leonard R. Mellon, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, FL 32399-0500

Enoch Jon Whitney, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, FL 32399-0500

Charles J. Brantley, Director

Division of Motor Vehicles

Neil Kirkman Building

Tallahassee, FL 32399-0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED

ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL

ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS

TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE

FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

DEPARTMENT OF HIGHWAY CASE NO.: 91-0415

SAFETY AND MOTOR VEHICLES

DIVISION OF MOTOR VEHICLES,

Petitioner,

vs.

BERNARD J. HANEY d/b/a/

SOUTHERN AUTO SALES,

Respondent.

___________________________/

FINAL ORDER

This matter is before the Department pursuant to s. 120.57(1)(b) 10, Fla.

Stat., for the purpose of considering the Hearing Officer's Recommended Order

and Petitioner's Exceptions To Recommended Order. Authority to enter this Final

Order is pursuant to the delegation to the Executive Director, Rule 15-1.012

F.A.C., and his designation of the undersigned.

Upon review of the Recommended Order, the Exceptions, and after a review of

the complete record in this case, the Department makes the following findings

and conclusions:

RULINGS ON EXCEPTIONS

1. The Department accepts Petitioner's Exception 1. Based upon a review

of the complete record, and particularly pages 180-197 and 211-216 of the

transcript of hearing, the Department finds that the second sentence of Finding

of Fact 13 is not supported by competent substantial evidence and is therefore

rejected. Haney testified that he assumed everything had been dropped (T-184)

and that no one told him he was not convicted (T-195). The discharge

certificate (part of Pet. Ex. 4) that Haney received in December, 1984, states

that he was convicted in Circuit Court in Harrison and Jackson County and

sentenced to four years (T-215). This testimony, together with findings 6, 7,

11 and 12 provide competent substantial evidence to support the first sentence

of finding paragraph 13, but not the second sentence, which is hereby rejected.

2. The Department accepts Petitioner's Exception 2. Based

upon a review of the complete record, the Department rejects

Finding of Fact 14 and substitutes in its place the following:

14. There is sufficient evidence to show

that at the time of his initial application

for licensure in 1987 and at the time of his

renewal applications in 1988, 1989 and 1990,

that Respondent acted fraudulently or

wilfully misrepresented the facts when he

answered no to the questions concerning any

prior arrests or convictions for a felony.

The Department accepts the construction of "willful" as set forth in State

of Florida, Department of Highway Safety and Motor Vehicles v. Taylor, 456 So.

2d 550, 552 (Fla. 3d DCA, 1984). The rejection of the second sentence of

Finding of Fact 13 eliminates the basis for any excuse of Respondent in failing

to disclose his prior arrest and conviction. Thus, he acted consciously and

wilfully in completing the application and renewal forms without the necessary

disclosure.

3. The Department accepts Petitioner's exception 3 regarding the

Conclusions of Law. The Department concludes that Respondent wilfully

misrepresented facts in filing his initial application for licensure and

subsequent renewals.

Furthermore, the Department concludes that Respondent did so with

sufficient frequency so as to establish a pattern of wrongdoing. Respondent

engaged in such a pattern by filing renewals for 1988, 1989 and 1990, following

his initial non-disclosure in 1987.

In addition, the Department concludes that the two felony convictions

incurred by Respondent adequately establish a pattern of wrongdoing as

contemplated by s. 320.27(9) Fla. Stat. The Department relies on the provisions

of ss. 320.27(9)(s), 320.27(3) and 320.605 Fla. Stat., in concluding that these

convictions are sufficient for license revocation, based upon the seriousness

of felony conduct and the need to protect the public welfare by unscrupulous

motor vehicle dealers. A similar determination was made by the Department

involving a single conviction in Department of Highway Safety and Motor Vehicles

v. Dick's Auto Sales, Case No.: 90-0175, Amended Final Order entered August 29,

1990, Supplement entered September 24, 1990.

FINDINGS OF FACT

1. Except as modified above, Findings of Fact set forth in the Recommended

Order are approved and adopted and incorporated herein.

2. There is competent substantial evidence to support the

Findings of Fact of the Department.

CONCLUSIONS OF LAW

1. The Department has jurisdiction of this matter pursuant to ss,

120.57(1) and 320.27, Fla. Stat.

2. Paragraphs 1-3 of the Conclusions of Law set forth in the Recommended

Order are approved, adopted and incorporated herein.

3. The Department accepts paragraph 4 of the Conclusion of Law, except for

the last two sentences thereof on page 8 of the Recommended Order, as determined

by the ruling of Petitioner's exception 3.

PENALTY

Based upon the foregoing Finding of Fact and Conclusions of Law it is

hereby ORDERED and ADJUDGED that:

1. Respondent is guilty of a violation of s. 322.27(9)(b) and (q), Fla.

Stat.

2. Respondent's motor vehicles dealer license is hereby revoked. This

penalty is appropriate based upon a review of the complete record and the

following reasons:

a. The seriousness of the underlying offenses and the continued

pattern of their misrepresentation, as it relates to the business of operating a

motor vehicle dealership in the context of s. 320.605, Fla. Stat.

b. The rejection of the second sentence of Finding of Fact 13 and

modification of Finding 14.

c. The recognition that upon a showing of good cause and proof of

rehabilitation and compliance with s. 320.27(3), Fla. Stat., Respondent is

entitled to seek reinstatement of its license. Section 320.273, Fla. Stat.

DONE AND ORDERED this __6__ day of __ January__, 1992, in

Tallahasseee, Leon County, Florida.

__________________________________

CHARLES J. BRANTLEY, Director

Division of Motor Vehicles

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399-0504

NOTICE OF APPEAL RIGHTS

Judicial review of this order may be had pursuant to section 120.68, Florida

Statutes, in the District Court of Appeal for the First District, State of

Florida, or in any other District Court Appeal of this state in an appellate

district where a party resides. In order to initiate such review, one copy of

the Notice of Appeal must be filed with the Department and the other copy of

the Notice of Appeal, together with the filing fee, must be filed with the

court within thirty days of the filing date of this order as set out above,

pursuant to Rule 9.110, Rules of Appellate Procedure.

Copies furnished to:

Charles R. Mayer, Esquire

Post Office Box 267

Highland City, Florida 33846

Michael J. Alderman, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-342

Tallahassee, Florida 32399-0504

William R, Cave

Hearing Officer

Division of Administrative Hearings

Desoto Building, 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550