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Home My WebLink About96-00751 II !) , , " ; I I I j i I - No. 9'. '.51 Civil Term ;'! ., ~V~ ~ ~1~~J~ a~~_. VS, _.~ t:. YJa.J., Court of Common Pleas Cumbo Co. i, 'I, " , ,.1 , I, 11 EE I!' '.1 'I " " " '1, " , '" .I~ I . , .. 'I , I " 'I 1'1\, i ... , , , I " ! ,'I', , :1'" " ~ " . v. q " .'U'. I, 1. Ii' I'. j"" 1'1 'i" " :j '\r', i \ , , j . . .' " , 1, "'l 'I ,f I }:: I 1 , " " -..' " , , i' , , , , , " , 11,./ , , " , , , I , " , , I '; , < " " " " , ,I " I'! , , " , /I " 'i;' " , " , iil , , " , ,,' " i , , , , , , , ' " I ,\ il IJ :1 " " , it '" ., " ,I, i)1 'I'; <, ;! ';1 'II ,Jl ;'j i'; 'I L' .. , " " " ., I' 'I' , , " d,_, , ' I,; , } " , " , , i1 " /-i I"~ , , " " , , " " " "'1 I'd 'li, " , " , , " " "j Ij , ;"1 q III , Ii '.j , , " " " " 1;1 'I I " '1_1- I, I'i , I! .. I; , , " 'n,-I " I , ~,n J~ , , , ("" ..1 t.;.'l '~II , ~i_' ~8 " I o:,':rn "~@ ,'/,1,,, " ,.) " , iV-_"'1 - , rd'i " I'.) , ., 1 , iPn,'\".: r\l}h'l , , ~-~!\.- , .'rJ '.1' , " , . ",1'1 ._:~ !f.' I d'rll: r:t. I (,) ':_~J \ ~..t.,' .. ..",/ , " ' . t ~I:;. Q ~, 1 ~.' \ N "'" ...,~ , "I I , , it, " " \1 , " " !" " " 'il . . . (19) Failing to obey any order of the board entered purSUant to the act, 6 3P, S, 5818, 10 ( 19) 1 (27) Being a curbstoner or engaging in the business of a dealer without a license. 63P,S, 5818,'10 (27), Curbstoner is defined as follows: "Curb-stoner or unlicensed salesperson." Any person who, for a commission, compensation or other valuable consideration, and without being licensed in accordance with this act as a salesperson, engages in the wholesale or retail sale. exchange or p4rchase in one calendar year of five or more used vehicles or any new vehicle," ,Section 2 of the Act, 63 P.S, 5818.2. The Commonwealth alleges in its Order to Show Cause the following: that Respondent is licensed as a vehicle salesperson in the Commonwealth of Pennsylvania, hOlding License No, MV-068293-L originally issued by the Board on June 18, 1984, that Respondent's license lapsed on May 31, 1991, but may be renewed upon the filing of appropriate documentat ion and payment of the necessary fees; that Respondent's address on file with the Board is 6239 Stanford Court, Mechanicsburg, PA 17055; that on February 15, 1991, the Board issued an Order accepting the terms of a Consent Agreement between the Respondent and the Commonwealth in the matter of Commonweal tho State Board of Vehicle Manufacturers. Dealers anq SalesDersons v. Patrick Fitzaerald Haak, Docket No, 0002-60-91, File No. 89-60-01321; that under the terms of the Consent Agr.ement Respondent admitted to having engaged in unlicensed vehicle dealer 2 activities and agreed to cease and desist any further unlicenaed sales activity and further agreed to pay a civil pFlnalty in the amount of $l, 500, that as of March 26, 1993, Respondent had paid $l250 towards the civil pl!naltYI that from February 1992 to October 1992, Respondent engaged in unlicensed sales activity, that on July 30, 1992 I Respondent rep,resented Carl Bricker Company of Camp Hi 11, Pennsylvania, concerning the sale of two vehicles at Harrisburg Auto Auction of Mechanicsburg, PA, that between February 1992 and October 1992, Respondent represented Carl Bricker Company concerning the purchasa of two vehicles at Your. Auto Auction, Inc. of Jonestown, PAl that between February 1992 and September 1992, the Respondent represented Carl Bricker Company concerning the purchase of seven vehicles and the sale of nine vehicles at York Springs Auto Auction of York Springs, PAl that between March 1992 and October 1992, the Respondent represented Carl Bricker Company concerning the sale of four vehicles at Mason-Dixon Auto Auction of Greencastle, PAl that. between April 1992 and August 1992, Respondent represented Gary Weaver Auto Sales of Spring Grove, PA concerning the purchasi.! of one vehicle and the sale of six vehicles at Your Auto Auction, Inc, of Jonestown, PAl that in March and April 1992, Respondent represented Gary Weaver Auto Sales concerning the sale of two vehicles at Mason-Dixon Auto Auction of Greencastle, PAl that on or about January 7, 1992, Respondent. represented Carl B, Bricker Company concerning the sale of a 1980 subaru to James E, Zeiders of Liverpool, PAl that on or about August 1, 1992, Respondent represented Gary Weaver Auto Sales 3 concerning the sale of a 1984 Chevrolet to Ronald L, Garlinger, Jr, of Mechanicsburg, PA, The Commonwealth's Order to Show Cause charges Respondent with violating Section 10 (19) of the Act, 63 P,S, 5818,10 (19), in that Respondent, having entered into a consent agreement and being ordered by the Board to. cease and desist unl icensed vehicle sales activity, continued to engage in the business of buying and selling vehicles during a time when Respondent was not properly licensed, The Commonwealth's Order to Show Cause also charges Respondent with violating Sections 5(a) and 10(27) of the Act, in that Respondent engaged in the buf.liness of buying and selling vehicles without being licensed to do so, In addition to any other disciplinary action, the Commonwealth seeks the imf'osition of a civil penalty against Respondent in accordance with Section 19 (c) of the Act, which provides I (e) Addition~l remedy . In addition to any other civil remedy or criminal penalty provided for in this act, the board by a vote of the maj,Jrity of the authorized membership of the board as provided by law, or by a vote of the majority of the duly qualified and confirmed membership, may levy a civil penalty of up to $1,000 on any current licensee who violates any provision of this act or on any person who engages in an activity required to be 1 icensed by this act. The board shall leVy this penalty only after affording the accused party the opportunity for a hearing as provided in Title 2 of the Pennsylvania Consolidated States (relating to administrative law and procedure) . 63 P,S. S818,19(c). The Commonwealth's Notice and Order to Show Cause were filed with the Board's Prothonotary on March 26, 1993, and were 4 served upon Respondent on March 26, 1993. On March 31, 1993, Respondent filed an Answer to the Commonwealth'~ Order to Show Cause. By notice dated September 23, 1993, a formal hearing was scheduled in this matter for November 18, 1993, before the Board. David Callihan, Esquire, appeared on behalf of the Commonwealth. Respondent appeared but,was not represented by counsel, Wade A, Fluck, Esquire, served as Board Counsel, On January 27, 1994, Respondent, through his attorney, James M, Bach, filed a post- hearing brief, 1994. The Commonwealth filed its Brief on January 31, 11,"'1 , " , , ; , " , '" , , , . , " " , ii' , , " , ;J , " 5 ,.,,':', " ", , " " , , !. ,I , jl il " , , ',. ;1 , ' " , i '. ,I,' , , " " j' -]11 " , , , , , 'I , " , , rIND~NGS or PACTS 1, Respondent is licensed as a vehicle salesperson in the Commonwealth of Pennsylvania holding license No, MV-068293-L, originally issued by the Board on June 18, 1984, (Board Records) 2, Respondent's license is current through May 31, 1995, and is renewable ~pon the payment of fees and the filing of documents, (Board Records) 3, Respondent's address on file with the Board is 270 St, John Drive, Camp Hill, PA 17011, (Beard Records) 4, Respondent was served with the Commonwealth's Notice and Order to Show Cause on March 29, 1993, (Board Records) 5, Respondent filed an Answer to the Order to Show Cause on March 31, 1993, (Board Records) 6, Notice of hearing was sent to Respondent by the Board's Prothonotary on September 23, 1993. (Board Records) 7, On January 24, 1991, Respondent and the Commonwealth entered into and executed a Consent Agreement in which Respondent admitted to buying and selling vehicles without being properly licensed, and agreed to cease and desist unlicensed sales activity and to pay a $1,500 civil penalty, (Board Records) 8, On February 15, 1991, the Board entered an Order _ which adopted the Consent Agreement, ordered Respondent to cease and desist unlicensed sales activity, and ordered Respondent to , pay a $1,500 civil penalty, (Board Records) .. 9, Respondent's :lcense lapsed May 31, 1991, and was not renewed by Respondent unt il Apri 1 28, 1993, (Board Records) 10, On January 6, 1992, Respqndent made a retail sale of a 1980 Subaru to James E, Zeiders through Gary Weaver Auto Sales, (Exhibit C-l0) 11, Between ~arch 31, 1992, and August 6, 1992, Respondent sold at auction nine vehicles on behalf of Gary Weaver Auto Sales, (Exhibits C-6, C-9) 12, On June 11, 1992, Respondent purchased one vehicle at auction on behalf of Gary Weaver Auto Sales. (Exhibit C-6) 13, Respondent applied to reactivate his salesperson's license through Gary Weaver Auto Sales in March of 1992, (N, T, 26, Answer, Exhibit 1 to Respondent's Answer) 14, Respondent's license application was rejected because Gary Weaver Auto Sales was not licensed as a vehicle dealer, (N,T, 27) 15, Respondent learned that Gary Weaver Auto Sales was not a licensed dealer in July of 1992 but continued selli.ng vehicles through Gary Weaver Auto Sales until August 6, 1992, (N.T, 27, Exhibit C-6) 16, Between January 13, 1992 and September 21, 1992, Respondent purchased six vehicles and sold ten vehicles at the York Springs Auto Auction on behalf of the Carl Bricker Company, (Exhibit C-7) 17. Between February 20, 1992 and October 15, 1992, Respondent purchased two vehicles and sold 17 vehicles at the 7 , ,.J~ ..J\ DISCUSSION The Commonwealth has demonstrated through documentary evidence that Respondent violated Sections 5 (ai, 10 (19) and 10(27) of the Act, 63 P,S, 55818,5(a), 818,10(19) and 818,10(27), because Respondent engaged in the business of buying and selling vehicles without being properly licensed, and violated an Order of the Board by continuing to buy and sell vehicles without being properly licensed after being ordered by the Board to ceaee and desist unlicensed activity: In the matter of ~monwealth of Pennsvlvania State Board of Vehicle Manufacturers, Dealers and Saleooersons v, patJ::ick Haills, Docket No, 0002-60-91, File No, 89-60-01321, Respondent had resolved prior charges of unlicensed activity by entering into a consent agreement with the Commonwealth on January 24, 1991, in which Respondent admitted to having bought and sold vehicles without being properly licensed and agreed to cease and desist unlicensed sales activity, On February 15, 1991, the Board entered an Order in that matter adopting the terms of the Consent Agreement, The evidence in this case shows that by January 1992, Respondent had resumed engaging in the business of buying and selling vehicles without being properly licensed to do so. On January 6, 1992, Respondent sold a 1980 Subaru to one James E. Zeiders on behalf of Gary Weaver Auto Sales. (Finding of Filet No. 10). Beginning January 13, 1992, Respondent was also buying and selling vehicles on behalf of the Carl Bricker Company, 10 ~ (Exhibit C-7) , Respondent's testimony that he applied to get li~ensed at the time he began working for Gary Weaver Auto Sales is not credible. (N,T, 26), His application to become licensed was not flled until March 1992, but he was already selling vehicles for Gary Weaver Auto Sales ~n January 1992, Likewise, he continued selling for Gary Weaver Auto Sales into August 1992 when he testified he stopped selling for Gary Weaver Auto Sales in July 1992, when he learned that the dealership's license was invalid, (N,T, 27) Additionally, during this same time he was buying and selling vehicles on behalf of Carl Bricker Company, which has never been licensed by the Board to engage in the business of a vehicle dealer, Given these facts, the Board finds Respondent's testimony entirely lacking in credibility, The Board finds that Respondent's conduct not only renders his pleas of innocence unworthy of credit, but ~lso that his conduct effectively circumvented the entire licensing system in regard to licensed dealers and licensed salespersons, Respondent not only engaged in unlicensed sales activity as a salesperson but his conduct also aided the unlicensed dealership activity of Gary Weaver and Carl Bricker, The licensure system is designed to protect the public- safety and welfare by requiring both dealers and salesp~rsons be licensed, The system. promotes the public welfare by requiring, inter alia, dealers to meet certain facility requirements, thus ~ ~ " Ij , I 11 encouraging a minimum level of stability in the industry. (See, e,g" Section 10(14) of the Act, 63 p,S, 5818,10(14)), This stability is an important protection to consumers who may require warranty and other repair services and/or redress for defective vehicles. Furthermore, ~he licensed dealers are responsible for the conduct of their salespersons (see, e,g" Sections 10(13), 10(15), and 10(30) of the Act, 63 P,S. 55818,10(13),818,10(15), 818.10(30)), Salespersons are required to be employed by licensed dealers in order to engage in the buying and selling of vehicles. Section 5(c) of the Act, 63 P,S, 58l8.5(c). Further salespersons only are to be employed by one dealer at a time, Section 2 of the Act, 63 P,S, 5818,2, These requirements help promote accountability of the seller to the buyer in regard to, inter alia, representations as to vehicle condition, warranty service and repair work, Respondent's conduct undercuts that stability and accountab~lity, not just for his own unlicensed conduct, but also for Respondent's promotion of the unlicensed conduct of his associates, Moreover, the entire regulatory system depends upon the support of licensees through their license fees, Legitimate licensees bear an unfair burden of supporting the regulatory system when persons such as the Respondent engage in conduct which circumvents it, Accordingly, the Board ent~rs the following Order: 12