STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REDWING CARRIERS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-2703

) STATE OF FLORIDA, OFFICE OF THE ) COMPTROLLER, )

)

Respondent. )

)

RECOMMENDED ORDER

1. The parties in the person of counsel have entered into a cstipulation for the entry of a Recommended Order which is in keeping with the Recommended Order in Aero Mayflower Transit Co., Inc. et al. vs. State of Florida, Office of the Comptroller, DOAH Case No. 81-2272 et al. and the Final Order entered by the Comptroller on August 6, 1982 (Administrative Proceeding Number 81-38-DOA). See Exhibit A attached, which is a copy of the Stipulation document.

   
   

2. By the Stipulation the parties agreed that the material facts and issues in the present case are substantially the same as the facts and issues involved in the road tax cases, Aero Mayflower, et al., supra. The parties further agreed to be bound by the Findings of Fact, Conclusions of Law and Final Order entered by the Comptroller on August 6, 1982, which dealt with the aforementioned Recommended Order in Aero Mayflower. Finally, the parties agreed that the Hearing Officer may enter a Recommended Order in the present action, which is identical to, or incorporates by reference the Recommended Order in Aero Mayflower Transit Co., Inc., which was entered May 10, 1982.

   
   

3. Based upon the Stipulation by the parties, the Recommended Order in Aero Mayflower, et al. DOAH No. 81-2272 is entered as the Recommended Order in the present action by its attachment to this Recommended Order as Exhibit B, and incorporation into the present Recommended Order by that action. By this action the matter is returned to the Comptroller for entry of a Final Order identical to, or incorporating by reference, the Final Order entered on August 6, 1982 dealing with the Recommended Order in Aero Mayflower, supra.

DONE and ENTERED this 15th day of April, 1983, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 1st day of April, 1983.

COPIES FURNISHED:

Hugh C. Edberg, Esquire 3020 First Florida Tower Tampa, Florida 33602

1. George Igler, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301

   
   

   Honorable Gerald Lewis Comptroller

   The Capitol, Plaza Level Tallahassee, Florida 32301

   Exhibit A STATE OF FLORIDA

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   REDWING CARRIERS, INC., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 81-2703

   ) STATE OF FLORIDA, OFFICE OF THE ) COMPTROLLER, )

   )

   Respondent. )

   )

   
   

   STIPULATION

   
   

   The Comptroller, as Fiscal Officer of the State of Florida, and the Petitioner, Redwing Carriers, Inc., through their respective counsel, stipulate and agree to the following:

   
   

   1. That the material facts and issue in the above-captioned case are substantially the same as the facts and the issue involving road taxes presented in Aero Mayflower Transit Co., Inc., et al. vs. State of Florida, Office of Comptroller.

      
      

   2. That the parties herein agree to be bound by the FINDINGS OF FACT, CONCLUSIONS OF LAW, and FINAL ORDER entered by the Comptroller on August 6, 1982 (Administrative Proceeding No. 81-38-DOA).

3 That the parties herein consent to entry, by Hearing Officer Charles C. Adams, of a Recommended Order identical to, or incorporating by reference, his Recommended Order entered on May 10, 1992, in Aero Mayflower Transit Co., Inc., supra. This procedure is being utilized in order that this action may be returned to the Comptroller for entry of a Final Order identical to, or incorporating by reference, the Final Order entered on August 6, 1992.

DATED:

HUGO C. EDBERG, ESQUIRE A. GEORGE EGLER

3020 First Florida Tower Assistant General Counsel Tampa, Florida 33602 Office of the Comptroller

The Capitol, Suite 1302 Tallahassee, Florida 32301

Exhibit B STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Introduction

These matters are presented for consideration as a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. In lieu of a hearing de novo, the parties to this action have offered stipulated facts, through the process of a written Stipulation and its exhibits. All parties to this action have entered into the Stipulation either at the original inception of the Stipulation or following that inception through the process of joining in the Stipulation with the original signatories. The result of the participation of all the named parties reflected in the style promotes a consolidated hearing related to all cases in which a single Recommended Order is dispositive of all cases reflected in the style. The Stipulation and consolidation have been accepted by orders of undersigned and the Recommended Order is hereby entered in keeping with the suggested format.

Through the process of this Recommended Order, recommendation will not be forthcoming related to exact amounts of refunds due to a given Petitioner for tax refund claims. Instead, by agreement of the parties as accepted by the Hearing Officer, recommendations for refund, if any, shall be handled by categories of refund claims, with the understanding that should the final disposition be in favor of the claimants, Respondent will not question the exact amounts related to an individual Petitioner. This arrangement is in keeping with paragraphs 5 and 9 of the aforementioned Stipulation. If conflicts do arise on the question of the particulars of any refund amount, the original signatories to the Stipulation have requested that they be allowed to litigate those disputes. An order was entered related to that request, which by its terms allows those cases to be reopened to consider such monetary disputes, by the act of a party making written request to reopen no later than thirty (30)

days from the date of final disposition by the agency in favor of the Petitioner. Claims beyond the thirty (30) day period would not be considered. This treatment of potential conflicts which arise related to the specific amount of refund will be afforded to all parties in cases reflected in this Recommended Order, by the act of the entry of the Recommended Order.

Petitioners and Respondent have offered written argument in support of their positions. This written argument has been made in accordance with the Stipulation and orders of the undersigned related to briefing schedules. In addition, Petitioners have submitted Proposed Findings of Fact and Conclusions of Law and Recommendation by separate filing. These arguments and proposals have been reviewed prior to the entry of this Recommended Order and to the extent that they are consistent with the Recommended Order, they have been utilized. To the extent that the matters are inconsistent with the Recommended Order, they are rejected.

APPEARANCES

For Petitioner:

Aero Mayflower Transit Co., John Radey, Esquire Inc. Holland and Knight

Post Office Drawer 810 Tallahassee, Florida 32302

Alterman Transport Lines,

Inc. John Radey, Esquire

Bowman Transportation, Inc. John Radey, Esquire Burgess and Cook, Inc. John Radey, Esquire Carl Subler Trucking John Radey, Esquire

Carolina Freight Carriers

Corp John Radey, Esquire

Commercial Carriers, Inc. John Radey, Esquire Consolidated Freightways John Radey, Esquire Gator Freightways, Inc. John Radey, Esquire

Georgia Highway Express,

Inc. John Radey Esquire

Meat Dispatch, Inc. John Radey, Esquire Miller Transportation, Inc. John Radey, Esquire The Motor Convoy, Inc. John Radey, Esquire For Petitioner:

Ollie Arthur Trucking Co. John Radey, Esquire Ryder Truck Lines, Inc. John Radey, Esquire

Suwannee Transfer, Inc. John Radey, Esquire United Parcel Service, Inc. John Radey, Esquire Pan American Van Lines, Inc. John Radey, Esquire

Florida Rock Haulers, Inc. Felix A. Johnston, Esquire

1030 East Lafayette Street Suite 112

Tallahassee, Florida 32301

Aldrich Trucking, Inc. Norman J. Bolinger, Esquire

3100 University Boulevard

Suite 225

Jacksonville, Florida 32216

Dixie Auto Transport Co.

formerly Dixie Transport Co. Norman J. Bolinger, Esquire Hayward Trucking, Inc. Norman J. Bolinger, Esquire

R. L. Jeffries Trucking,

Inc. Norman J. Bolinger, Esquire Trans-Phos, Inc. Norman J. Bolinger, Esquire

B. J. McAdams, Inc. Thomas F. Panebianco, Esquire

Post Office Box 1200 Tallahassee, Florida 32302

McKenzie Tank Lines, Inc. Thomas F. Panebianco, Esquire

Chemical Tank Lines, Inc. Thomas F. Panebianco, Esquire Florida General Trucking,

Inc. Thomas F. Panebianco, Esquire

MR&R Trucking Company Thomas F. Panebianco, Esquire Signal Delivery, Inc. Charles E. Natkins, Esquire

Corporate Headquarters 3700 Park East Drive Cleveland, Ohio 44122

Refrigerated Transport Roger A. Kirschenbaum, Esquire Co., Inc. 5th Floor, Lenox Tower South

3900 Peachtree Road

Atlanta, Georgia 30326

Courier Service Martin S. Freeman, Esquire International and Dikman 1020 East Layayette Street Courier Service Tallahassee, Florida 32301

Polar Transport, Inc. Alton C. Gardner

Vice President-Traffic Polar Transport

176 King Street

Hanover, Massachusetts 02339

National Trailer Convoy, Nancy Henry

Inc. Legalization Supervisor National Trailer Convoy, Inc. Post Office Box 3329

705 South Elgin

Tulsa, Oklahoma 74101

For Petitioner:

Shelton Trucking Service, Sol H. Proctor, Esquire Inc. 1101 Blackstone Building

Jacksonville, Florida 32202

Louis J. Kennedy Trucking, William D. Moore, Esquire Inc. 604 Exchange Building

Tallahassee, Florida 32302

American Sightseeing Tours, Robert B. Nadeau, Jr., Esquire Inc. Seventeenth Floor, CNA Building

Post Office Box 231 Orlando, Florida 32802

Florida Limousine, Inc, Robert B. Nadeau, Jr., Esquire Morgan Drive Away, Inc. Robert B. Nadeau, Jr., Esquire Trailways, Inc. Robert B. Nadeau, Jr., Esquire

Florida Rock and Tank Martin S. Sack, Jr., Esquire Lines, Inc. 203 Marine National Bank

Building

311 West Duval Street Jacksonville, Florida 32202

Ploof Truck Lines, Inc. Martin S. Sack, Jr., Esquire For Respondent:

Office of the Comptroller John Browdy, III, Esquire

Assistant Attorney General The Capitol

Tallahassee, Florida 32301 ISSUE

The issues presented here concern refund petitions which have been filed pursuant to Section 215.26, Florida Statutes, calling for the reimbursement of taxes and fees paid by the several Petitioners. In particular, the refund claims concern payments made for the time period February 1, 1980 through

January 31, 1981, under the substantive terms of Chapter 323, Florida Statutes, related to certain functions of the Florida Public Service Commission in its dealing with the Petitioners who are motor carriers operating in the State of Florida. Specifically, the payments were in the categories:

1. Cab cards for each motor vehicle used in intrastate carriage at the rate of $8.00 per motor vehicle.

   
   

2. Florida I.D. stamps for each motor vehicle used in interstate carriage at the rate of $5.00 or $8.00 per motor vehicle.

   
   

3. Road taxes for each motor vehicle at a rate of

   $10.00, $15.00, $25.00, $40.00, $50.00 or $100.00 per

   motor vehicle for motor vehicles registered for use November 1, 1979, through June 30, 1980, and at the rate of $10.00, $15.00, $25.00, $40.00, $25.00 and

   $50.00 for motor vehicles registered for use July 1, 1980, through October 31, 1980.

   
   

4. Emergency or trip-lease permit cards at the rate of $10.00 per permit.

FINDINGS OF FACT

There follows a verbatim restatement of the Stipulation and incorporation and adoption of the exhibits associated with that Stipulation. This restatement and incorporation of exhibits constitutes the fact finding for the purposes of this Recommended Order, with the exception of paragraph 19 to the Stipulation, which is modified in keeping with the February 9, 1982, order of the undersigned to allow the Petitioners to seek recovery of (100 percent or any lesser percent) refund of any road taxes and fees paid for cab cards, identification stamps and emergency permits to `the Public Service Commission under Chapter 323, Florida Statutes (1979), after October 31, 1979, for the 1980 Public Service Commission cycle. This modification becomes part of the fact finding of this Recommendated Order.

The Stipulation follows:

STIPULATION

The Comptroller, State of Florida, and Petitioners stipulate and agree-as follows:

1. Petitioners were motor carriers which operated motor vehicles in Florida during 1980. Petitioners were the holders of PSC certificates [to the extent required by Chapter 323, F.S., (1979)] which authorized for-hire carriage by motor vehicles within the meaning of Chapter 323, F.S. (1979).

   
   

2. Prior to July 1, 1980, the PSC operated under Chapter 25-5, F.A.C. Chapter 25-5, F.A.C., became invalid by operation of law due to the repeal of Chapter 323, F.S. (1979), which became effective on July 1, 1980.

   
   

3. On or about November 1, 1979, the PSC required payment of certain fees from Petitioners, and all other similarly situated motor carriers, for the time period February 1, 1980, through January 31, 1981, by sending to Petitioners

   application forms and instructions, a copy of which is attached and incorporated by reference as Exhibit 1 to this Stipulation. The PSC informed Petitioners that the forms should be used to apply for vehicle identification devices beginning November 1, 1979, through October 31, 1980. Payments indicated to be due by the PSC as shown in Exhibit 1 were in the following categories:

   
   

   1. Cab cards for each motor vehicle used in intrastate carriage at the rate of

      $8.00 per motor vehicle.

      
      

   2. Florida I.D. stamps for each motor vehicle used in interstate carriage at the rate of

      $5.00 or $8.00 per motor vehicle.

      
      

   3. Road taxes for each motor vehicle

      at a rate of $10.00, $15.00, $25.00, $40.00,

      $50.00 or $100.00 per motor vehicle for

      motor vehicles registered for use November 1, 1979 through June 30, 1980, and at the rate of $10.00, $15.00, $25.00, $40.00, $25.00 and

      $50.00 for motor vehicles registered for use July 1, 1980, through October 31, 1980.

      
      

   4. Emergency or trip-lease permit cards at the rate of $10.00 per permit.

      
      

4. Petitioners were instructed by the PSC to fill out the application for cab cards, identification stamps, road tax decals and emergency or trip-lease permit cards to the extent applicable for the particular carrier.

   
   

5. After receipt of the PSC application and instructions (Exhibit 1), Petitioners each paid varying amounts of the fees and taxes described in Paragraph 3 hereof to the Public Service Commission. While the parties do not stipulate herein to the specific amounts paid, it is anticipated that there will ultimately be no disputed issue of fact relative to that amount. Accordingly, the parties ask for a recommended order which, upon becoming final, will guide payment of refunds.

   
   

6. Upon receipt of an application from a Petitioner, such application was verified as to accuracy, completeness, and other assurances as provided in Chapter 25-5, F.A.C. In those instances where the PSC found the applications to be defective, the application would be returned to the Petitioner with a PSC form, a copy of which is attached and incorporated by reference as Exhibit 2.

   
   

7. Upon receipt of payments from Petitioner's with proper application, the PSC credited the particular Petitioner's account for money received.

   Thereafter, the PSC deposited the payments into the Regulatory Trust Fund, General Revenue, or Revenue Sharing Trust Fund pursuant to Chapter 323, F.S. (1979).

   
   

8. Upon receipt of payments and proper applications from a Petitioner, the PSC issued and sent the number of cab cards or identification stamps paid for to such Petitioner. Each card and stamp specified an expiration date of February 1, 1981. A copy of a specimen card (Exhibit 3) and an identification stamp (Exhibit 4) are attached and incorporated by reference.

9. Petitioners that paid road taxes were issued and sent road tax decals to evidence payment of said tax, for each vehicle for which such road tax was paid. These decals also specified an expiration date of February 1, 1981. A copy of a specimen decal is attached and incorporated by reference as Exhibit 5.

   
   

10. Emergency permit cards or trip lease permits, as referred to in sec. 323.22(2), F.S., were issued with expiration dates of February 1, 1981. The permits were issued in lieu of cab cards and road taxes and were good for 15 consecutive days. A specimen emergency permit is attached hereto and incorporated by reference as Exhibit 6.

    
    

11. In general, when a Petitioner received the cab cards, stamps, decals, or permits, they were assigned to a particular motor vehicle as registered with the PSG. However, the PSC did issue upon request unassigned cab cards, stamps, decals and permits. when the unassigned items were assigned to a Particular motor vehicle by a Petitioner, the PSC was to be notified within 30 days. In some instances, the unassigned items were not assigned to any particular motor vehicle prior to July 1, 1980.

    
    

12. The motor carrier regulatory program of the PSC under Chapter 323 was administered through a transportation section of the PSC. The operation of this section was paid for out of the regulatory trust fund established under Section 350.78, Florida Statutes (1979). Outside of the administration of the application process previously described, major functions of this section vis-a- vis motor carriers were:

    
    

    1. Enforcement efforts in the field to insure

       that only PSC certified motor carriers were providing for-hire intrastate carriage via motor carriers.

       
       

    2. Field inspections requisite to insuring compliance by PSC certified carriers with the terms of their certificates (such as what could be hauled or a geographical limitation) within the requirements of Chapter 25-5, F.A.C., including, for example, verification of proper insurance,

       cab cards, and decals.

       
       

    3. Field inspections of motor vehicles relative to safety of the motor vehicles (tires, brakes, axles, hoses, lights, etc.).

       
       

    4. Field analysis of the adequacy of motor

       carrier service being provided to various shippers.

       
       

    5. Verifying registration of ICC certificated carriers.

       
       

    6. Updating records relative to insurance to make sure that evidence of insurance required to be on file was in fact on file.

       
       

    7. Investigations attendant to new requests for certificates of public convenience and necessity as applied for by new motor carriers to the PSC.

    8. Enforcement activities were conducted in field offices maintained in Pensacola, Tallahassee, Lake City, Jacksonville, Tampa, Miami, West Palm Beach, Ocala and Orlando.

    
    

13. The PSC procedures and regulatory practices described above in paragraphs 2 through 12 hereof for the period involved in this proceeding were essentially the same as for prior years. These procedures and practices reflected the PSC's interpretation of Chapter 323, F.S. (1979) and Chapter 25- 5, F.A.C.

    
    

14. Monies were paid into the PSC Regulatory Trust Fund from various regulated industries including motor carriers. Once monies were put into the trust fund, the monies were comingled and were lawfully expended without specific identification of the source of the funds. sec. 350.78, F.S. (1979).

    
    

15. The Florida Auditor General prepared a report on the PSC for the fiscal year ending June 30, 1980, dated July 20, 1981, a copy of which is attached and incorporated in toto by reference as Exhibit 7. As noted in Exhibit 7 at page 11, the balance in the PSC regulatory trust fund from all regulated industries as of July 1, 1979, was $12,383.056.04 and the fund balance as of June 30, 1980, was $15,979,238.04, subject to the footnote on page 11, and the contingency of refund requests such as the requests which are the subject matter of this proceeding as noted in Exhibit 7 at page 21.

    
    

16. For the 1979 year, the PSC collected $2,092,954.93 under Chapter 323

    F.S. (1979) for cab cards, stamps, and emergency permits. Revenues from cab cards and identification stamps were deposited in the PSC Regulatory Trust Fund. Funds generated by emergency permits were split, 50 percent to the PSC Regulatory Trust Fund, and 50 percent applied to the road tax as required by sec. 323.15, F.. (1979). During this same period, $2,625,845.90 was collected for road taxes, of this amount $882,284.22 was deposited in the PSC Regulatory Trust Fund and the balance was deposited in General Revenue or the appropriate Revenue Sharing Trust Fund. Using reasonable accounting assumptions, the PSC's 1979 transportation administrative costs for 12 months were $3,525,241.70.

    
    

17. For the 1980 year, the PSC collected $1,935,533.40 under Chapter 323

    F.S. (1979) for cab cards, stamps, and emergency permits. Revenues from cab cards and identification stamps were deposited in the PSC Regulatory Trust Fund. Funds generated by emergency permits were split, 50 percent going to the PSC Regulatory Trust Fund and 50 percent applied to the road tax as required by sec. 323.15, F.S. (1979). During this same period, $2,752,038.20 was collected for road taxes, of this amount $874,217.97 was deposited in the PSC Regulatory Trust Fund and the balance was deposited in General Revenue or the appropriate Revenue Sharing Trust Funds. Using reasonable accounting assumptions, the PSC's 1980 transportation administrative costs for 6 months were $2,189,615.17.

    
    

18. Pursuant to Chapter 80-298, Laws of Florida, the Transportation Enforcement Section of the PSC was transferred by a type three transfer as defined in Section 20.06, Florida Statutes, to the Department of Transportation and assigned to the Bureau of Weights within the Division of Road Operations. To implement the transfer, funds amounting to $1,919,812.00 were transferred by PSC to DOT. (Exhibit 8)

    
    

19. Petitioners each timely applied for a refund of payments made to the PSC under Chapter 323, F.S. (1979) for the 1980 cycle of the PSC, as follows:

    1. Either 100 percent or a lesser amount (i.e. petitioners differed as to claims of 7/12th

       or 1/2) of amounts paid for assigned cab cards, identification stamps and permits.

       
       

    2. Either 100 percent or a lesser amount (i.e. petitioners differed as to claims of 7/12ths or

       1/2 or 17 percent) of amounts paid for road tax decals.

       
       

    3. 100 percent of amounts paid for issued but unassigned cab cards, stamps, decals, and permits.

       
       

       If the Hearing Officer finds that a Petitioner is not entitled to a refund as claimed, then the finding of entitlement to a lesser amount or percentage is not precluded, in essence, Petitioner's application may be partially granted if found to be payable. 1/

       
       

20. Petitioners' applications for refund were initially considered by the PSC which recommended to the Comptroller that in some instances the Petitioners' refund requests be granted in whole or in part and in other instances recommended that the requests be denied in whole or in part.

    
    

21. As to Petitioners, the Comptroller has issued letters of intent to deny all refund requests made to the Comptroller.

    
    

22. Petitioners have timely requested formal Section 120.57(1), Florida Statutes, proceedings and the Petitioners have standing.

    
    

23. While the parties stipulate as to the accuracy of the above facts, each party reserves the right to argue the relevancy of the facts set out above.

    
    

24. The parties agree that the issue presented herein is whether Petitioners are entitled to a refund, in whole or in part, of fees and/or taxes paid to the PSC under Chapter 323 F.S. (1979) after October 31, 1979.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes; Chapter 323, Florida Statute., and Section 215.26, Florida Statutes.

    
    

26. Petitioners have made requests for refunds related to payments for cab card fees, identification stamp fees, road taxes and emergency or trip-lease permit card fees, for the period February 1, 1980, through January 31, 1981, paid to the Florida Public Service Commission pursuant to Chapter 323, Florida Statutes (1979). These claims are timely. See Subsection 215.26(2), Florida Statutes (1981).

    
    

27. One of the issues raised by Petitioners in their argument concerns the propriety of the Florida Public Service Commission's action in charging and collecting road taxes, cab card fees, and identification stamp fees on an annual basis beginning November 1, 1979, through January 31, 1980, for the year February 1, 1980, through January 31, 1981.

    
    

28. The regulatory scheme related to these collections, as set forth in Chapter 323, Florida Statutes, had been earmarked for repeal June 30, 1980, by legislation in 1976. That legislation in the year, 1976; was a "Sunset Act"

    found at Chapter 76-168, Laws of Florida. Therefore, according to the Petitioners, it was inappropriate to collect taxes and fees on an annual basis

    ,for the calendar year 1980, and part of 1981 and the Public Service Commission having been alerted to a possible repeal at approximately the halfway point in the calendar year 1980, the monies collected should be refunded.

    
    

29. Taxes and fees were collected in the categories alluded to for the calendar year' 1980 and part of 1981, in keeping with the annual collection scheme and Chapter 323, Florida Statutes, did not survive the state repeal date of June 30, 1980. This circumstance does not lead to a result which would preclude collection and utilization of taxes and fees for a portion of the period encompassed by the annual collection process in the years 1980 and beginning of 1981, premised upon the fact that the process had been called an annual collection. The characterization of this activity on the part of the Public Service Commission, as being annual, is not reason to foreclose the collection activities and thereby entitle the Petitioners to a 100 percent refund in their present claims related to road taxes, cab cards and identification stamps.

    
    

30. Although the contemplated "Sunset" as outlined in Chapter 76-168, Laws of Florida, did occur on June 30, 1980, Chapter 323, Florida Statutes, remained in effect until that repeal date and the Public Service Commission was entitled and indeed was required to comply with conditions set forth in Chapter 323, Florida Statutes until the point of repeal. The Public Service Commission was not charged with the task of attempting somehow to modify the terms and conditions set forth in Chapter 323, Florida Statutes, in contemplation of the repeal, the possibility being presented until the final effective date related to the subject law, that a reenactment might have occurred, leaving the Public Service Commission in the same posture as they had been in the full collection year 1979. See Alterman Transport Lines, Inc. v. State, 405 So.2d 456 (Fla. 1st DCA 1981)

    
    

31. In summary, the mere fact that the collections of cab card fees, identification stamp fees, and road taxes were labeled as annual collections, is an insufficient basis to entitle the Petitioners to a 100 percent refund of monies paid for those items related to the year February 1, 1980 through January 31, 1921.

    
    

32. Petitioners in seeking a refund of road taxes paid for the period February 1, 1980, through January 31, 1981, rely on Subsection 215.26(1),

    Florida Statutes (1981) , as the underlying basis of the refund claim. 2/

    (This refund provision also serves as a basis for the other categories of refund claims made by the Petitioners.)

    
    

33. In the subject period, road taxes were collected from the various Petitioners under authority of Section 323.15, Florida Statutes (1979). The reason for collection of these taxes is as set forth in Section 323.25, Florida Statutes (1979), which states:

    
    

    323.25 Taxes deemed compensatory.-- All road taxes prescribed by this chapter and all such taxes imposed on motor

    carriers using the public highways in the transportation of persons or property

    for compensation shall be deemed to be compensatory for the use of the public highways of this state by motor carriers taxed

    under the provisions of this part and as a fair contribution to the cost of constructing and maintaining the public highways of this state and the administration and enforcement of

    this part and all regulations and restrictions imposed hereby and authorized to be imposed by the commission are declared to be for the purpose

    of conservation of the state's property and in the interest of safety in the' use of its highways.

    
    

    It can be seen that the taxes are referred to as a compensatory charge related to the use by motor carriers of public highways in the State of Florida, construction and maintenance of those highways, and administration and enforcement of the provisions of Chapter 323, Florida Statutes (1979) , related to regulation of motor carriers.

    
    

34. The monies collected through the imposition of the road taxes were disbursed as prescribed in Section 323.16, Florida Statutes (1979). 3/

    
    

35. That portion of the disbursements which relates to the question of regulation of the motor carriers by the Florida Public Service Commission was to be used by the Florida Public Service Commission for that purpose and its other related functions and duties required by law, see Section 350.78, Florida Statutes (1979), with the remaining share of the taxes being for the benefit of municipalities and counties in the State of Florida.

    
    

36. An analysis of the assessment process, the purposes for the collection

    , and the placement and use of the monies collected, leads to the conclusion that the increment placed in the Florida Public Service Regulatory Trust Fund was in the form of a license fee charge to be used in regulation of the motor carriers and those funds for the benefit of municipalities and counties were in the nature of a tax related to the use, construction and maintenance of public highways in Florida. This determination is made in keeping with the rationale in Bateman v. City of Winter Park, 37 So.2d 362 (Fla. 1948), which described the idea of a tax, as opposed to a license fee arrangement, as being the type fee arrangement in which a business entity pays for the privilege of carrying on that business without regard to any specific conditions or requirements related to the privilege itself. Ergo, when those conditions are present, such as in a regulatory scheme, the form of charge is more in the nature of a license fee.

    
    

37. The effect of such division of funds, in keeping with the compensatory scheme outlined in Chapter 323, Florida Statutes, means that the . portion of the road taxes collected and distributed into the municipal and county funds is in the nature of a general revenue producing measure and is subject to utilization from the point of collection and assignment to a given Petitioner's account through the collection cycle November 1, 1979, through January 31, 1980, related to the tax year February 1, 1980, through January 31, 1981. Consequently, tax funds placed in the Municipal and County Revenue Sharing Trust Funds are not subject to refund through this claims process.

    
    

38. On the other hand, those road tax collections for the period in question are in the nature of a license fee collection or regulatory format and Petitioners are entitled to a quid pro quo for their expenditures. That is to say, that the Petitioners having paid for a full year's regulation related to the ongoing efforts of administration and enforcement by the Florida Public Service Commission, Petitioners were entitled to that full year's administration and enforcement, and in the absence of that full performance, are entitled to be

    refunded a pro rata share of the monies paid. Specifically, Petitioners are entitled to Seven-twelfths (7/12) of the 35 percent road tax amounts paid into the Florida Public Service Regulatory Trust Fund, which represents the months July 1, 1980, through January 31, 1981, in which Chapter 323, Florida Statutes (1979), had been repealed, and no further regulation pursuant to that authority was taking place. (A new regulatory scheme had been adopted pursuant to Chapter 80-415, Laws of Florida, which substituted for Chapter 323, Florida Statutes (1979) subsequent to June 30, 1980.)

    
    

39. Petitioners have made claim for refunds related to payments of cab card fees and identification stamp fees. Section 323.22, Florida Statutes (1979), 4/ calls for the registration and identification of motor vehicles operated by the various motor carriers and allows the Public Service Commission to prescribe identifying devices (cab cards). Those identifying devices were to be issued upon the payment of a fee, in keeping with Section 323.011, Florida Statutes. In particular, it is determined, that Subsection 323.011(11), Florida Statutes (1979), prescribes the fee spoken of when it calls for the payment of an $8.00 fee with each application for a cab card issued pursuant to Section 323.22, Florida Statutes (1979). Those fees are deposited in Florida Public Service Regulatory Trust Fund. Section 350.78, Florida Statutes (1979).

    
    

40. In furtherance of the fee collection, related to identifying devices, the Florida Public Service Commission enacted Rule 25-5.14, Florida Administrative Code. Unlike Chapter 323, Florida Statutes, this rule called for annual fee collections as opposed to a onetime fee collection, and as a consequence, the rule was held to be invalid through a Final Order entered in Aero Mayflower Transit Co., Inc. et al. v. State of Florida, Public Service Commission and the Comptroller of the State of Florida, DOAH Case No. 82-131R. That Final Order was appealed by the Respondents and subject to automatic stay; however, the stay was lifted by Order entered by the Division of Administrative Hearings. Consequently, the rule is no longer in effect as it would pertain to the present Recommended Order.,

    
    

41. Any annual, or renewal or second time fee, that is to say, if cab card fees and identification stamp fees collected for the year February 1, 1980, through January 31, 1981, were being collected for a second year in sequence, then those fees-are not considered to be initial fees for the period February 1, 1980, through January 31, 1981, and should be refunded. In contrast, those cab card fees and identification stamp fees which were initially collected or collected for the first time for the period February 1, 1980, through January 31, 1981, are not subject to refund, in that this fee collection was for the ministerial purpose of identifying given equipment operated by the motor carrier and not related to the day-to-day regulatory function of the Public Service Commission as was the case in that portion of the road taxes collected. The initial cab card fees and identification stamp fees for the year February 1, 1980, through January 31, 1981, were "earned" upon the payment of the fee and crediting of the account. See Aero Messenger Service, Inc., et al. v. Comptroller, DOAH Case 80-1936, et al.

    
    

42. In lieu of the-issuance of the road tax decals, and cab cards, emergency permit cards or trip-lease permits were issued to Petitioners. Those permits were good for 15 consecutive days and were issued under the authority of Rule 25-5.141, Florida Administrative Code. The monies collected were then divided with 50 percent of the proceeds placed directly into the Florida Public Service Regulatory Trust Fund and 50 percent disbursed in the same fashion as road tax monies collected from motor carriers.

43. This hybrid permit which carries with it the aspects of an identifying device and a road tax decal, leads to a similar determination on the issue of refund. The 50 percent of the permit fees contributed directly to the Regulatory Trust Fund are considered to be earned in the same way as those fees related to the ministerial function accomplished in recording the issuance of an identifying device pursuant to Section 323.22, Florida Statutes (1979), and that

    50 percent contributed directly to the Florida Public Service Regulatory Trust Fund is not subject to refund. Of the money treated as a road tax, 35 percent of the remaining 50 percent of collections related to the permits represents the day-to-day or ongoing regulatory fee charged for administration and enforcement activities of the Florida Public Service Commission, and 65 percent of the remaining 50 percent collected for the permit is in the nature of a general revenue producing device for tax related to use, construction and maintenance of highways in Florida. The general revenue producing aspect of that portion of the 50 percent fee collection is not subject to refund. The 35 percent of the remaining 50 percent of payments of fees involved with administration and enforcement is subject to refund in the amount of seven-twelfths (7/12) of that figure, i.e., seven-twelfths (7/12) of 35 percent of 50 percent, which represents the period July 1, 1980, through January 31, 1981, when the Public Service Commission was not providing a regulatory function under Chapter 323, Florida Statutes, (1979) that chapter having been revealed, effective June 30, 1980.

    
    

44. All conclusions of law reached thus far assume payment for and issuance of cab cards, identification stamps, road tax decals and emergency permit cards or trip-lease permits, for assignment and use by Petitioners with specific equipment for the period February 1, 1980, through January 31, 1981.

    
    

45. Any cab cards, identification stamps, road tax decals or emergency or trip-lease permit cards issued by the Public Service Commission subsequent to June 30, 1980, or issued by that commission prior to July 1, 1980, with a proviso that the item be used subsequent to June 30, 1980, should be refunded.

    
    

46. The entitlement to or denial of refund requests related to cab cards, identification stamps, road tax decals and emergency or trip-lease permit cards is not premised upon whether those items were assigned or used by the Petitioners following the issuance of the items by the Public Service Commission. Issuance alone is sufficient to invoke the tests applied and conclusions of law reached.

Based upon a full consideration of the facts and conclusion's of law reached, it is

RECOMMENDED:

That a final order be entered which (1) refunds to Petitioners on a pro rata basis seven-twelfths (7/12) of 35 percent of the road taxes paid by the Petitioners for the year February 1, 1980, through January 31, 1981; (2) refunds all recurring or second time or renewal fees paid for identifying devices which are known as cab cards and identification stamps related to the year February 1, 1980, through January 31, 1981; (3) refunds to Petitioners on a pro rata basis seven-twelfths (7/12) of 35 percent of 50 percent for emergency permit cards or trip-lease permits for the year February 1, 1980, through January 31, 1981; (4) refunds all charges related to cab cards, identification stamps, road tax decals and emergency or trip-lease permit cards issued subsequent to June 30, 1980, or issued prior to July 1, 1980, to be used July 1, 1980, or on a later date; and

(5) denies all other refund claims made by the Petitioners.

DONE and ENTERED this 10th day of May, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 10th this day of May, 1982.

ENDNOTES

1/ See modification at Page 5.

2/ 215.26 Repayment of funds paid into State Treasury through error, etc.--

1. The Comptroller of the state may refund to the person who paid same, or his heirs, personal representatives or assigns, any money paid into `the State Treasury which constitute:

   1. An overpayment of any tax, license or account due;

   2. A payment where no tax, license or account is due; and

   3. Any payment made into the State Treasury in error; . . .

3/ 323.16 Disposition of moneys collected.-- The commission shall keep a separate account of all moneys collected under s. 323.15, and said moneys shall be placed in the State Treasury to be credited as follows:

1. Thirty-five percent of such funds, shall be deposited in the Florida Public Service Regulatory Trust Fund, as created by s. 350.78, for use by the commission in the administration of this part.

2. Two percent of such funds shall be credited to the Revenue Sharing Trust Fund for Municipalities.

3. The remainder of such fund shall be placed in the State Treasury to the credit of the Revenue Sharing Trust Fund for Counties, subject to distribution as provided in this act.

4/ 323.22 Vehicle registration and identification; fee.-

1. The commission shall prescribe reasonable rules and regulations governing the registration and identification of motor vehicles authorized for operation under this part. Under such rules and regulations, the commission may prescribe appropriate identifying devices (cab cards), for which the commission shall charge a fee as provided for in s. 323.011. Any such identifying device prescribed and furnished by the commission shall be conspicuously displayed at all times upon each motor vehicle authorized for operation under this part in such manner as may be prescribed from time to time by the vehicle to another shall be prohibited.

2. Motor carriers operating pursuant to a certificate, permit, or registration issued by the commission may obtain emergency or trip-lease permit cards in lieu of cab cards to identify vehicles operated under a trip-lease or emergency for not more than 15 days. The fee for such card shall be the same as for cab cards and will be in lieu of the road tax. The provisions herein are for

vehicles operated on an emergency or temporary basis only, and if the vehicle is in service more than 15 days, the motor carrier shall be required to pay all applicable fees and taxes.

COPIES FURNISHED:

John Radey, Esquire Roger A. Kirschenbaum, Esquire HOLLAND & KNIGHT 5th Floor, Lenox Tower South Post Office Drawer 810 3900 Peachtree Road Tallahassee, Florida 32302 Atlanta, Georgia 30326

John Browdy, III, Esquire Nancy Henry

Assistant Attorney General Legalization Supervisor Department of Legal Affairs National Trailer Convoy, Inc. The Capitol Post Office Box 3329 Tallahassee, Florida 32301 705 South Elgin

Tulsa, Oklahoma 74101

David Smith, Esquire

Public Service Commission Alton C. Gardner

Legal Department Vice-President-Traffic

Fletcher Building Polar Transport

101 Gaines Street 176 King Street

Tallahassee, Florida 32301 Hanover, Massachusetts 02339

Felix A. Johnston, Jr., Esq. Sol H. Proctor, Esquire 1030 E. Lafayette Street 1101 Blackstone Building

Suite 112 Jacksonville, Florida 32202

Tallahassee, Florida 32301

Robert B. Nadeau, Jr., Esquire

Craig Massey, Esquire Seventeenth Floor

215 East Lime Street CNA Building

Post Office Drawer 1109 Post Office Box 231 Lakeland, Florida 33802 Orlando, Florida 32502

William D. Moore, Esquire Martin Sack, Jr., Esquire

604 Exchange Building 203 Marine National Bank Building: Tallahassee, Florida 32302 311 West Duval Street

Jacksonville, Florida 32202

Ansley Watson, Jr., Esquire

Post Office Box 1531 David A. London, Vice President Tampa, Florida 33601 of Finance

Nu-Car Carriers, Inc.

Jo Ellen Farnham, Esquire 950 Haverford Road

Post Office Box 265 Bryn Mawr, Pennsylvania 19010 Zephyrhills, Florida 33599

Hugo C. Edberg, Esquire Norman J. Bolinger, Esquire . HILL, HILL & DICKENSON 3100 University Boulevard 3020 First Florida Tower Suite 225 Tampa, Florida 33602

Jacksonville, Florida 32216

Thomas F. Panebianco, Esquire Post Office Box 1200 Tallahassee, Florida 32302

Martin S. Freeman, Esquire 1020 E. Lafayette Street Tallahassee, Florida 32301

Charles E. Natkins, Esquire Leaseway Transportation Corp. Corporate Headquarters

3700 Park East Drive Cleveland, Ohio 44122

Docket for Case No: 81-002703

Orders for Case No: 81-002703