STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HIGHWAY SAFETY AND MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2314

)

JOSHUA LOGAN d/b/a LOGAN'S )

STREAMLINE DRIVING SCHOOL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on February 23, 1982, in West Palm Beach, Florida. A transcript of the proceedings was received on March 14, 1982. The parties were afforded leave, through April 14, 1982, 1/ to submit post-hearing memoranda supportive of their respective positions.

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Assistant General Counsel Department of Highway Safety

and Motor Vehicles

The Neil Kirkman Building Tallahassee, Florida 32301

For Respondent: Sally S. Benson, Esquire

Suite 106, Forum III

1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401

ISSUE

Whether Petitioner properly denied Respondent's application for the renewal of his Commercial Driving School License No. 1719, and Teaching Certificate No. 4531.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, Petitioner's proposed memorandum and the entire record compiled herein, the following relevant facts are found. 2/

2. Respondent, Joshua Logan, during times material, was the owner/operator of Logan's Streamline Driving School in West Palm Beach, Florida, beginning in 1970. (Tr. 52) Respondent's most recent Commercial Driving School License (No. 1719) and Teaching Certificate (No. 4531) both expired on June 1, 1981. (Tr. 6)

   
   

3. On May 18, 1981, Respondent applied to the Department of Highway Safety and Motor Vehicles (herein Department) for renewal of the above referred license and Teaching Certificate. Prior thereto, on or about May 14, 1981, the Department, through its staff, had instructed Respondent that he should contact the Department's agent, J. F. Hayes, at the West Palm Beach Drivers' License office, to arrange for the inspection of his school facilities before his license and certificate could be renewed. On approximately June 1, 1981, Respondent, via a telephone communique with John F. Hayes, District Supervisor, Palm Beach District, Region IV, requested that his renewal applications be held in abeyance pending completion of remodeling of his school building.

   
   

4. The Department, pursuant to that communique, held Respondent's renewal applications in abeyance and considered them to be incomplete. Respondent was not told by agents of Petitioner that he could continue to engage in the business of conducting a driving school when his license/certificate expired.

   
   

5. The Department issued an order dated August 27, 1981, prohibiting the Respondent from operating as a commercial driving instructor since his school license and teaching certificate both expired on June 1, 1981.

   
   

6. On September 29, 1981, Levi Dixon completed an application for a license to conduct a commercial driving school under the name Logan's Streamline Driving School. Attached to that application were receipts, lesson plan forms and other contractual agreements which had been previously utilized by the Respondent. Respondent never renewed his request for an inspection with Supervisor Hayes.

   
   

7. Don H. Keirn, Chief, Driver Improvement Bureau for Petitioner, regulates programs related to problem drivers. Chief Keirn has been the bureau chief for driver improvement for approximately twelve (12) years and also is in charge of regulating driving schools. As part of his duties, he inspects vehicles, making certain that they are properly equipped with dual controls, pass safety inspections and bear signs legible to the driving public. Rule 15A- 2.07, Florida Administrative Code.

   
   

8. Chief Keirn reviewed the application to change the ownership of the Respondent's driving school during October of 1981. Chief Keirn had received no advance notification from Respondent of any plans (of Respondent) to change the ownership of the school.

   
   

9. John F. Hayes, District Supervisor of the Palm Beach District (Region

   IV) makes periodic checks of commercial driving schools in the Palm Beach district.

   
   

10. During the summer of 1981, Respondent advised Supervisor Hayes that, on April 14, 1980, he gave a behind-the-wheel driving lesson to Alzora Washington, in her own vehicle, rather than in a dual-control vehicle approved

11. by the Department, which lesson resulted in Ms. Washington's car crashing through a fence and into a neighbor's home. (Testimony of Respondent, Ms. Washington; Tr. 18, 19, 38 and Petitioner's Exhibit No. 1) Respondent caused to be placed, in a local weekly newspaper, an advertisement offering driving instructions during October and November, 1981. (Petitioner's Composite Exhibit 5)

1. Also, on November 10, 1981, Respondent gave instructions to Geraldine Wilder White in preparation for her to take the written portion of the driver's license exam to obtain a restricted driver's license. Ms. White paid Respondent a $40.00 fee for the driving instruction. (See Petitioner's Exhibit 4; Tr. 20- 24, 40-48 and Composite Exhibit 5)

   
   

2. Sometime during the period in which Respondent requested Petitioner to postpone the inspection of his school, Petitioner learned of Respondent's actions as relates to his giving a driving lesson to Ms. Washington on April 14, 1980.

   
   

3. Respondent, Joshua A. Logan, is a 56-year-old male who has custody of his three (3) children. Respondent is employed full time as a professional teacher by the Office of Community Mental Health.

   
   

4. Respondent has had no prior charges brought against him by the Petitioner. Nor has he been previously charged with violations of any of the Department's rules. 3/ Respondent was therefore of the opinion that by advising Supervisor Hayes of the accident in which he was involved with Ms. Washington, Petitioner would place him on probation for giving a driving lesson in an unapproved vehicle.

   
   

5. Respondent executed an answer to a civil suit initiated by counsel for Ms. Washington as a result of the automobile accident referred to hereinabove. Respondent also filed a counter-claim to Ms. Washington's claim and admits to having made several mistakes in both the answer and the counter-claim respecting damages and claims for such damages. 4/

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. The authority of the Petitioner is derived from Chapter 488, Florida Statutes, and Rule Chapter 15A-2, Florida Administrative Code.

   
   

9. All commercial driving schools in this state must be licensed by the Department and every instructor must be the holder of a current instructor's certificate issued by the Department. Chapter 488.01, Florida Statutes. An instructor's certificate is valid only for use in connection with the particular school listed on the certificate. Subsection 488.04, Florida Statutes.

   
   

10. Respondent Joshua Logan's driving school license and instructor's certificate both expired on June 1, 1981. Based thereon, Respondent was not entitled to continue to operate his school during the period subsequent to June 1, 1981. Chapter 488.03, Florida Statutes.

    
    

11. Respondent, by giving a behind-the-wheel driving lesson to Ms. Alzora Washington on April 14, 1980, in a car which had not been issued an identification certificate by the Department and which did not have dual controls, violated Rules 15A-2.07(1) and 15A-2.07(2)(d) , Florida Administrative Code.

    
    

12. Respondent, by engaging in the business of conducting a commercial driving school and acting as a driving instructor for compensation without possessing a valid license and certificate issued by the Department, violated Chapter 488.01 and 488.04, Florida Statutes, and Rule Chapters 15A-2.02 and 15A- 2.09, Florida Administrative Code.

    
    

13. Rule 15A-2.11(1)(a), Florida Administrative Code, authorizes the Department to deny a school license or instructor's certificate for a violation of any provision of Chapter 488, Florida Statutes, or any of the rules and regulations of the Department.

RECOMMENDATION

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

RECOMMENDED:

That the Department deny Respondent's application for renewal of his school license Number 1719 and Teaching Certificate Number 4531.

RECOMMENDED this 25th day of May, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982.

ENDNOTES

1/ Petitioner's counsel has submitted a proposed memorandum which has been considered by me in preparation of this Recommended Order. By letter dated April 12, 1982, Respondent's counsel advised the undersigned that, due to her client's severe financial crisis, Respondent would not be submitting a proposed order.

2/ To the extent that the proposed findings of fact and conclusions of law of Petitioner's memorandum are not incorporated in this Recommended Order, they were deemed either irrelevant, immaterial or not otherwise supported by the evidence of record.

3/ In this regard, Respondent's testimony differs from that of Supervisor Hayes. As example, Supervisor Hayes testified that on at least two (2) occasions during random inspections of Respondent's driving school, he observed certain rule violations, including the acts (by Respondent) of conducting more than one business in the facility in which Respondent's driving school operated, an infraction of the Petitioner's rules. However, once these rules infractions were brought to Respondent's attention, they were corrected. To the extent that Respondent's testimony in this regard differs from the version offered by Supervisor Hayes, Respondent's testimony is not credited. In any event, these matters are not posed as issues herein and are merely set forth herein due to the attacks on Respondent's credibility.

4/ Again, these matters are referred to herein based on Petitioner's claim that Respondent has been less than truthful in his dealing with Petitioner's agents throughout these proceedings.

COPIES FURNISHED:

Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety

and Motor Vehicles

The Neil Kirkman Building Tallahassee, Florida 32301

Sally S. Benson, Esquire Suite 106, Forum III

1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401

Docket for Case No: 81-002314

Orders for Case No: 81-002314