D. H., INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-417
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
) WEST COAST HAULING, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-418
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
) SHELTON TRUCKING SERVICE, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-419
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
)
SHELTON TRUCKING SERVICE, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-420
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
) REFRIGERATED TRANSPORT COMPANY, ) INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-421
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
) CHARLES W. LAURAMORE, )
)
Petitioner, )
)
vs. ) CASE NO. 82-422
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
) CHARLES W. LAURAMORE, )
)
Petitioner, )
)
vs. ) CASE NO. 82-423
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
) THOM'S TRANSPORT, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-424
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
)
COMMODITY BROKERAGE EXCHANGE, )
)
Petitioner, )
)
vs. ) CASE NO. 82-425
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
) COMMODITY BROKERAGE EXCHANGE, )
)
Petitioner, )
)
vs. ) CASE NO. 82-426
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
) SIXTO MOVING, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-427
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
) FRENZ ENTERPRISES, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-428
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
) FLORIDA LIMOUSINE SERVICE, INC., ) d/b/a FLORIDA TOUR AND LIMO, )
)
Petitioner, )
)
vs. ) CASE NO. 82-429
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
)
WEAVER TRANSPORATION COMPANY, )
)
Petitioner, )
)
vs. ) CASE NO. 82-430
) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )
)
Respondent. )
)
RECOMMENDED ORDER
Introduction
In lieu of a formal Subsection 120.57(1), Florida Statutes hearing, the parties in these matters have entered into a written stipulation of facts which serves as the basis for the Recommended Order. In addition to the stipulated facts, those Petitioners represented by Sol H. Proctor, Esquire, and Respondent's counsel have presented memoranda. That argument has been considered prior to the entry of this Recommended Order. To the extent that the argument is convincing, it has been utilized. To the extent that the argument is inconsistent with the Recommended Order, it has been rejected as contrary to the conclusions of law found or recommended disposition made.
APPEARANCES
For Petitioners: Sol H. Proctor, Esquire
1101 Blackstone Building
Jacksonville, Florida 32202
William M. Johnson, d/b/a Johnson's Chevron
Severance Truck Line Ryder Truck Lines, Inc.
F. E. Swindle Rock Haulers, Inc.
D. D. H., Inc.
West Coast Hauling, Inc. Shelton Trucking Service, Inc.
Refrigerated Transport Company, Inc. Charles W. Lauramore
Thom's Transport, Inc. Commodity Brokerage Exchange
Robert B. Naudeau, Jr., Esquire Post Office Box 231
Orlando, Florida 32802
Attorney for Florida Limousine Service, Inc., d/b/a Florida Tour and Limo
Richard B. Austin, Esquire
320 Rochester Building
8380 North West 53rd Street Miami, Florida 33166
Attorney for Sixto Moving, Inc. and Frenz Enterprises, Inc.
Jack Weaver, President
Weaver Transportation Company Post Office Box 43565 Atlanta, Georgia 30336
For Respondent: Walter W. Wood, Esquire
Comptroller's Office, The Capitol Tallahassee, Florida 32301
ISSUES
The issues presented concern the claims made by the several Petitioners related to requests for refunds from Respondent pertaining to the payment of application fees for the issuance of Certificates of Convenience and Necessity or Transportation Brokers' Licenses. See Chapter 323, Florida Statutes.
FINDINGS OF FACT
As alluded to initially, the facts in this matter are presented based upon a stipulation offered by the parties. Those facts were acknowledged as the factual basis for the Recommended Order by interlocutory order dated September 23, 1983. In keeping with that action and pursuant to the parties' Stipulation of Facts, the following facts are found:
The application for either Certificate of Convenience and Necessity or Transportation Brokers' License (hereinafter referred to as application) was received by FPSC's fiscal office where the mail was opened. The check for the application fee was then deposited, and the application was transmitted to the Clerk's office.
The Clerk's office assigned the application a docket number and sent copies of the application to the Legal Department, Transportation and Regulatory Planning Department, and occasionally to the Rate Department. A copy of the Applicant's "Brief Written Statement," containing a description of the authority sought, required by Commission Rule, was sent to the Florida Trucking Association and the Public Counsel.
At the Legal Department, each application was assigned to an attorney who reviewed it to determine whether it was complete in accordance with statutory requirements and that all supporting documentation was attached. If an application was deficient for any of the above reasons, the attorney would either call or write the applicant to remedy the situation. After the attorney deemed the application complete, he would prepare a "Notice of Filing of Application." The application was then returned to the Clerk's Office. The amount of time spent on this initial review of the application varied. In the case of most applications, particularly those filed by established companies or attorneys with experience before the FPSC, an estimated two hours was involved in review and preparation of the Public Notice. First time applicants, whose applications were incompletely filed, could involve up to five hours' time. The Notice of Filing Application provides notice to the public of the authority
sought as described by the applicant in its application and "Brief Written Statement" which was required to accompany each application. No written record was kept of the amount of time spent on a particular application.
The Clerk's Office sent a copy of "Notice of Filing" to all persons on FPSC's current mailing list.
A. No protest received.
The Clerk's Office notified the Legal Department and requested that they issue a recommendation to the Commission as to what action should be taken on the application. The attorney initially assigned to review the application would evaluate the file, and if complete, prepare a memorandum advising that a grant of the application was in accord with past Commission policy and draft an order for the commissioners' signatures. The attorney at times might also seek a recommendation from the Transportation Department.
B. Protest received.
The Clerk's office would send the protest to the chief hearing officer and a hearing date and hearing examiner were assigned.
The Transportation Section performed a field investigation on all passenger carrier applications. Field investigations on other applications would be performed upon request by the Legal Department or other FPSC personnel at any time within the application process. There was a standard form to evidence that a field investigation was performed. It should be noted that the last two or three months prior to deregulation there was no automatic field investigation of passenger applications, and field investigations for other types of applications were minimal during the last half of FPSC's regulation (January through June, 1980).
The FPSC, prior to the sunsetting of Chapter 323, Florida Statutes, had, in certain instances, recommended refunds of application filing fees up and until an application was set and noticed for hearing. Based upon said recommendations, the Comptroller paid the refund requests.
FACTS COMMON TO ALL
Each Petitioner applied to the FPSC and each paid the statutory fee.
The fee was deposited in the FPSC's Regulatory Trust Fund.
The application for each Petitioner proceeded through the process outlined in 1-4 herein where, pursuant to Subsection 323.030(2), Florida Statutes, the FPSC issued Notice of Filing the Application. Each of the Petitioners herein has requested a refund of the application fee.
Each Petitioner received a Notice of Intent to Deny Refund issued by the Comptroller of the State of Florida.
All Petitioners filed a timely request for hearing. Said requests have been held in abeyance pending the conclusion of the administrative hearing and issuance of the Amended Final Order entered on dune 12, 1981, for a similarly situated group of motor carriers.
At the time Petitioners filed their applications, a certificate or license from the FPSC was required, by law, as far a prerequisite for engaging in transportation activities each sought to perform in the State of Florida. Without a certificate or license, each applicant would have been subject to a fine or other legal sanction. On July 1, 1980, pursuant to Laws of Florida 1976, Chapter 76-168, Chapter 323, Florida Statutes, was repealed, thus eliminating the requirement of a Certificate of Convenience and Necessity and Transportation Brokers' License.
Except for Commodity Brokerage Exchange and Florida Limousine Service, Inc. (d/b/a Florida Tour and Limo), which are specifically set forth below, Petitioners' applications fall within two categories. Each category set forth below represents a level of activity and each application falls within one of these categories:
Application was set for hearing; processed through steps 1-6, inclusive; Docket Number 800095-CCT, Ryder Truck Lines, Inc.
Application was not set for hearing, but a field investigation was performed; Docket Number 790647-CCT, Charles W. Lauramore.
Commodity Brokerage Exchange filed two applications which were processed through steps 1-4, inclusive; Docket Numbers 800428-ATB and 800429- ATB. In accordance with Subsection 323.31 (4)(b), Florida Statutes, Commodity Brokerage Exchange received a refund of $400.00 for each application, since no license was issued.
Florida Limousine Service, Inc., d/b/a Florida Tour and Limo, filed an application with the FPSC which was processed through steps 1-6, inclusive; Docket Number 800104-CCB. On June 19, 1980, an Amended Application was filed which was substantially different from the previously filed application. No additional filing fee was required and the hearing scheduled for the initial application was cancelled. The Amended Application was not renoticed.
Based upon the foregoing, the Comptroller and Petitioners believe that the Hearing Officer can decide the underlying issues presented without an evidentiary hearing, and the parties concerned should be ordered to provide legal memoranda to the Hearing Officer within thirty (30) days of the Hearing Officer's acceptance of this stipulation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes; Chapter 323, Florida Statutes: and Section 215.26, Florida Statutes.
Petitioners have made requests for refunds related to the payment of application fees to the Florida Public Service Commission to obtain Certificates of Convenience and Necessity or Transportation Brokers' Licenses. These payments were made pursuant to provisions of Chapter 323, Florida Statutes. The requests for refunds related to those payments are timely.
Four categories of refund claims are identified in the stipulated facts. The category described as Docket No. 800095-CCT, Ryder Truck Lines, Inc., constitutes the "A" classification. This classification relates to applications that were set for hearing and processed through the initial six
steps identified in the stipulated facts. Those entities have paid the application fee of $500 pursuant to Subsection 323.011 Florida Statutes, in the attempt to obtain a Certificate of Convenience and Necessity. They now seek refunds based upon the repeal of Chapter 323, Florida Statutes, effective July 1, 1980, which removed the requirement of licensure to operate as a motor carrier in Florida. The application process as described in Section 323.03, Florida Statutes, does not describe the method by which an applicant might obtain a refund, should the underlying regulatory chapter be repealed, as was the case with Chapter 323, Florida Statutes. Therefore, consideration of the refund claim must be made pursuant to Subsection 215.26(1), Florida Statutes, 1/ which deals with general refund claims.
Determination of the entitlement to refund is the responsibility of the Comptroller, not the Florida Public Service Commission. Any decision to allow a refund claim must be made upon the finding that there has been an overpayment of the license fee; no license fee was due or the payment of the fee was made in error. To ascertain whether any of the available theories for recovery have been sustained to allow the Comptroller to refund part or all of the refunds requested, an examination must be made of the nature of the fee payment.
The application fee was paid in furtherance of an attempt to gain a license, which is referred to as a Certificate of Public Convenience and Necessity. A license was necessary here before services which the applicants intended to provide could be undertaken and remained necessary until the repeal of Chapter 323, Florida Statutes, effective July 1, 1980. Those fees were paid not as a revenue-producing measure, i.e., a tax; the fees served to defray the costs of processing the application. For the regulatory agency to earn those fees, it was necessary to perform a service to the applicant prior to the repeal of the regulatory statute. The quality of that performance as it pertains to the policy choice to allow the refunds has been spoken to in the Final Order of the Comptroller in Arrow Messenger Service, Inc. v. State of Florida, Office of the Comptroller, D.O.A.H. Case 80-1936. That case and others of similar vein were dealt with in that Final Order. In its legal conclusions the opinion identifies the level of performance necessary on the part of the Florida Public Service Commission to earn the application fees. Those levels were akin to Classification "A" spoken to in this Recommended Order, in that refunds were denied to applicants who had their applications preliminarily examined and hearings established related to the application. Therefore, in keeping with the prior agency decision in Arrow Messenger, supra, and being convinced of the propriety of that decision, Classification "A" in the current cases referred to as the Ryder Truck Lines scenario would not be entitled to a refund pursuant to Section 215.26, Florida Statutes. Likewise, Classification "B," which is referred to as Docket No. 790647-CCF, Charles W. Lauramore-type case, would not be entitled to a refund in that preliminary steps were taken concerning the application and an investigation was performed. Consequently, per the opinion of the Arrow Messenger, related to the denial of refund on similar facts to those set forth in the Lauramore-type situation, particularly as it relates to the fact that investigations were conducted on the application, and finding the policy choice in the Arrow Messenger decision to be convincing, no refund is due in Classification "B."
In D.O.A.H. Cases 82-425 and 82-426, Commodity Brokerage Exchange, as identified in the Findings of Fact as Classification "C,' had paid the $750 license application fee required of transportation brokers. See Section 323.31, Florida Statutes. These $750 payments related to each application. The payments were made prior to the repeal of Chapter 323, Florida Statutes, and
upon review the applications were rejected, and a $400 refund was paid related to each application. Unlike the circumstance in the applications for Certificate of Convenience and Necessity, those licensed applicants for Transportation Brokers' Licenses are afforded an automatic refund pursuant to statute. That refund provision is identified in Subsection 323.31(3)(b), Florida Statutes. The refund is given when a license is not issued and that
$400 refund was given related to each of the applications by Commodity Brokerage Exchange. That provision of law establishes the limits of the refund and by such declaration not only establishes the amount of refund to which an applicant is entitled, it also establishes the amount of fee earned by the Florida Public Service Commission in processing the application. That amount is $350 for each application. The repeal of Chapter 323, Florida Statutes, does not set aside these determinations. In summary, Commodity Brokerage Exchange, having been refunded $400 for each of its license applications, is not entitled to further refund.
Classification "D" in the types of refund claim in the present cases pertains to Florida Limousine Service, Inc. The initial application which was filed by Florida Limousine was processed to include investigative action and the scheduling of a final hearing. Consequently, in keeping with the conclusions of law related to Classifications "A" and "B," the Florida Public Service Commission earned the $500 application fee initially paid by Florida Limousine Service, and Florida Limousine Service is not entitled to refund pursuant to Section 215.26, Florida Statutes. When Florida Limousine Service filed an amended application on June 19, 1980, which was substantially different from the initial application, no filing fee was required for that application. In effect, the initial filing fee was sufficient for the original and amended applications. The hearing on the original application was cancelled and not renoticed related to the amended application. The act of filing the amended application, the cancellation of the hearing related to the initial application, and the failure to renotice the hearing for the amended application, taken in the context of the actions related to the processing of the initial application and the lack of a filing fee charged for the amended application, will not disturb the conclusion of law that the Florida Public Service Commission earned the application fee related to the initial application and Florida Limousine Service is not entitled to refund.
Mention is made in the stipulated facts that the Florida Public Service Commission had "in certain instances recommended refunds of application filing fees up until an application was set and noticed for hearing" and that the Comptroller paid the refund request. That factual account of prior policy determinations by the Office of the Comptroller is not sufficiently complete to allow comparison with the present facts of the cases at issue and those facts in the Arrow Messenger cases to allow a conclusion that the Comptroller should pay refund requests in the present cases. Therefore, the Petitioners are not entitled to refund based upon any prior agency action as spoken to in paragraph
