STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, DIVISION ) OF DRIVER LICENSES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1208

)

ROLANDO MIRABET, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 20, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: Judson M. Chapman, Esquire

Tallahassee, Florida

For Respondent: Alan Goldfarb, Esquire

Miami, Florida

On April 8, 1982, the Director of the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles, entered an Order of Summary Suspension, Notice and Administrative Complaint, suspending Respondent's commercial driving instructor's certificate card No. 5133 for the unauthorized possession and sale of a copy of a driver license examination questionnaire or a questionnaire made up in the same manner as the questionnaire used by the Division. That Order further noticed Respondent of Petitioner's intention to revoke his certificate card for the same reason. Respondent timely requested a formal hearing on the allegations in the Administrative Complaint. Accordingly, the issue for determination is whether Respondent's instructor's certificate card should be revoked, suspended, or otherwise disciplined.

Petitioner presented the testimony of Don Keirn, Eliott Rodriguez, Lawrence Henrichs, Rudolfo Padro, and Louis C. Licea. Additionally, Petitioner's Exhibits numbered 1, 2 (sealed), 3 (sealed), and 4 (a late-filed exhibit) were admitted in evidence. The Respondent, Rolando Mirabet, testified on his own behalf.

Both parties submitted post-hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. Respondent, Rolando Mirabet, was first licensed as a commercial driving instructor in 1981. His current license will expire February 1, 1983.

   
   

2. On March 26, 1982, a cameraman for WTVJ, Channel 4, Miami, while posing as a driver's license applicant at the Central Driver License Office was approached by Respondent. The cameraman/applicant told Respondent he was looking for the answers to the driver's license examination. They entered an automobile, Respondent showed the cameraman/applicant papers which he represented to be test questions from the actual driver's license examination, and the cameraman/applicant told Respondent he needed to take the questions and answers home with him to study.

   
   

3. Respondent sold the questionnaire to the cameraman/applicant for twenty-five dollars ($25).

   
   

4. Other employees of WTVJ filmed the encounter between Respondent and the cameraman/applicant from inside a surveillance van.

   
   

5. The document sold by the Respondent to the WTVJ cameraman/applicant contains fifty-three questions with multiple-choice, alternate answers provided for each question and with one of the alternate answers for each question being marked as the correct answer. The document is in Spanish.

   
   

6. Applicants for a driver's license are required, among other things, to pass a written examination concerning rules and regulations for driving in the State of Florida. Petitioner uses four different written examinations for testing applicants.

   
   

7. During the hearing, one of Petitioner's witnesses compared the questionnaire sold by the Respondent to the cameraman/applicant and one of the Spanish versions of Petitioner's examination. Although the witness identified five questions as being the same on both documents, he also recognized some of the questions on the document which Respondent sold as being questions from the other versions of Petitioner's Spanish examination. A close review of the actual examination admitted in evidence and the document sold by Respondent reveals, however, that all twenty questions on the actual examination are found verbatim in the document sold by Respondent, and the alternate, multiple-choice answers to each question are also verbatim.

   
   

8. Respondent admits giving the questions and answers to driver's license applicants. Respondent denies any knowledge of the rules and regulations enacted by Petitioner.

   
   

9. Petitioner publishes a driver's handbook. That handbook contains a number of questions that are general in nature. No answers to those questions are suggested, and a reader needs to understand the entire book in order to answer those questions. Only one sample question with multiple-choice answers is given in order to illustrate to applicants the type of question which the applicant will encounter on the licensing examination.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1) Florida Statutes (1981).

    
    

11. Licensure of commercial driving schools and instructors is governed by Chapter 488, Florida Statutes (1981); and Chapter 15A-2, Florida Administrative Code. Section 15A- 2.11, Florida Administrative Code, provides in pertinent part, as follows:

    
    

    1. Any license, certificate, or agent identification card may be denied, suspended or revoked by the Director when such action shall be for the pur- pose of enforcing the safety require- ments essential to the purpose of Chapter 488, F.S. The following acts or conditions shall be considered violations of the safety requirements essential to effect the purpose of Chapter 488, Florida Statutes.

       1. The violation of any provision of Chapter 488, F.S., or of any of the

          rules and regulations of the Department.

          1. The unauthorized possession of application forms or questionnaires used by the Division of Driver Licenses in conducting driver's license examina- tions.

             
             

12. The Administrative Complaint filed in this cause charges Respondent with the unauthorized possession of a copy of a driver's license examination and the sale of that examination to an unauthorized person on March 26, 1982. Respondent admits that he gives out the examination to applicants, and, therefore, the Respondent admits his possession of the test questions and answers as a general practice. Petitioner has met its burden of proving that Respondent possessed and sold a copy of a driver's license examination used by the Division of Driver Licenses on March 26, 1982.

    
    

13. The purpose of the Department's rule prohibiting instructors from possessing and selling test papers is to prevent applicants from being able to pass the written driving examination without reading and learning the driver's handbook. Understanding and learning the driver's handbook is part of the Department's testing process, which is designed to teach applicants the rules of safe driving. Possession and sale of questionnaires used by the Petitioner is of such gravity, in light of Respondent's responsibilities to the licensing authorities and the driving public, that revocation of his instructor's certificate card is warranted. Respondent offered no evidence in mitigation of revocation of his certificate card; rather, his unabashed acknowledgement that he gives away the examination and that he is not aware that the Petitioner even has any rules or regulations governing commercial driving instructors require the permanent revocation of Respondent's certificate card.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED THAT:

A final order be entered permanently revoking the commercial driving instructor's certificate card of Respondent, Rolando Mirabet.

RECOMMENDED this 27th day of July, 1982, in Tallahassee, Florida.

LINDA M. RIGOT, 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 27th day of July, 1982.

COPIES FURNISHED:

Judson M. Chapman, Esquire Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32301

Alan Goldfarb, Esquire

12th Floor, Roberts Building

28 West Flagler Street Miami, Florida 33130

Mr. Chester F. Blakemore Executive Director Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32301

Docket for Case No: 82-001208

Orders for Case No: 82-001208