STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1209

)

JUAN CRESPO, )

)

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, suspending Respondent's commercial driving instructor's certificate card for the unauthorized possession and sale of questionnaires used by the Division or questionnaires made up in the same manner as the questions used by the Division in conducting driver license examinations. Respondent timely requested a formal hearing on the Administrative Complaint portion of that Order. 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, Ardo Mesa, Amado Perera, and Louis C. Licea. Additionally, Petitioner's Exhibits numbered 1 through 7 were admitted in evidence with the stipulation that Petitioner's Exhibit numbered 7 be sealed. Respondent, Juan Crespo, testified on his own behalf, and Respondent's Exhibit numbered 1 was admitted in evidence.

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 was initially licensed as a commercial driving instructor in November, 1980, for Autosa International, Inc., a driving school in Miami, Florida. His current license, which is due to expire in November, 1982, is with Fajardo Driving School. As a commercial driving instructor, Respondent's responsibilities include teaching applicants how to drive in order to become licensed drivers in Florida.

   
   

2. Florida drivers are not required to speak English. The Petitioner's Florida Driver's Handbook, which contains all of the rules and driving procedures, is, accordingly, issued in both English and in Spanish. In order to ensure knowledge of the Handbook, applicants are required, among other things, to take a written, multiple-choice, rules- of-the-road and road-sign test for licensure. The written examination is given both in English and in Spanish. Petitioner uses four different examinations on a random basis. The clientele of Autosa International are primarily Spanish speaking.

   
   

3. The Florida Driver's Handbook contains many questions for the reader's benefit in verifying his or her understanding of the contents of that handbook. The questions are general in nature, and no answers are provided. On Page 77 of the Handbook, one sample question is given with multiple-choice answers and the correct answer being checked. This sample question is provided in order to illustrate the form of question given on the written examination.

   
   

4. When Respondent began his employment with Autosa International, Inc., driving school, he was assigned a 1980 Spirit automobile. When an instructor at Autosa is assigned an automobile, he is permitted to take that automobile home, but is required to assume responsibility for having the automobile maintained and serviced.

   
   

5. Acting upon information given to him, Ardo Mesa, president of Autosa International, searched the automobile assigned to Respondent when Respondent was not present. In the trunk of that automobile, in the space between the spare tire and the cover for the spare tire, Mesa found a copy of one of the Petitioner's Spanish examinations and a second set of papers which is a composite of questions from the four Spanish examinations given by the Petitioner. The questions on both sets of documents are followed by multiple- choice answers with the correct answer being marked. When Mesa realized that these documents were the actual Spanish examinations given by the Petitioner, he returned the documents to the space under the spare-tire cover and began watching the Respondent for the next several days in order to determine why Respondent possessed those documents.

   
   

6. After seeing Respondent take the papers out of his trunk and give them to students, Mesa confronted Respondent on March 5, 1982. With Respondent present, Mesa opened the trunk, took out the documents, and ripped them into several pieces. Respondent acknowledged to Mesa that the documents were his. Mesa threw the torn documents into the trunk of Respondent's car and terminated Respondent's employment with Autosa driving school. Mesa later retrieved the torn documents from the trunk of the car, taped them back together, placed them in an envelope in his office, and contacted Petitioner to report Respondent's possession of copies of Petitioner's examinations.

   
   

7. Respondent had been employed by Autosa International and had possession of the 1980 Spirit for approximately three months before his employment was terminated.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. 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 purpose of enforcing the safety requirements 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.

            
            

10. 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 thereof. Although Petitioner has failed to meet its burden of proving that the Respondent engaged in the sale of a questionnaire used by the Division, the Department has clearly met its burden of proving that Respondent, Juan Crespo, possessed copies of driver license examinations used by the Division of Driver Licenses. Possession of such questionnaires by commercial driving instructors is prohibited in order to ensure that a driver's license applicant is able to pass the licensure examination as a result of studying the rules and regulations of the road, and not as a result of memorizing the correct answers to the questions actually being asked. Possession of the questionnaires is of such gravity, in light of Respondent's responsibilities to both the State and the public, that revocation of Respondent's certificate is justified.

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 of Respondent, Juan Crespo.

RECOMMENDED this 26th 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 26th day of July, 1982.

COPIES FURNISHED:

Judson M. Chapman, Esquire Assistant General Counsel 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: 82-001209

Orders for Case No: 82-001209