STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1211

)

ERNESTO E. LUQUE, )

)

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 21, 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 driving instructor's certificate card. The Administrative Complaint portion of that Order seeks permanent revocation of Respondent's instructor's certificate No.

5062 based upon several incidents of violence. Respondent timely requested a formal hearing on the allegations in the Administrative Complaint. Accordingly, the issue for determination is whether Respondent's certificate as a commercial driving school instructor should be revoked, suspended for a definite period of time, or otherwise disciplined.

Petitioner presented the testimony of Don Keirn, Jean Claude Daniel, Carl Andre, Elioneor Francois, Louis C. Licea, Enelio Rodriguez, and Miguel Orlando Uria. Additionally, Petitioner's Composite Exhibit numbered 1 and Exhibit numbered 3 were admitted in evidence, but Petitioner's Exhibit numbered 2 was marked for identification only. Amado Perera and Rolando Boada testified on behalf of the Respondent.

Only the Petitioner 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 first licensed by Petitioner as a commercial driving instructor in November, 1981, until November, 1982. Until that license was summarily suspended on April 8, 1982, Respondent was employed by Fajardo Driving School.

   
   

2. On January 8, 1982, at approximately 6:00 A.M., Respondent approached the waiting line at the Central Driver's License Office with two Cuban applicants for drivers' licenses. A number of Haitian applicants were at the beginning of the line. Respondent attempted to place his two students in front of the Haitians. When the Haitians refused to allow Respondent and his students to enter the line in front of them, Respondent and his two students went to some nearby trash cans, obtained bottles, and began fighting with and striking the Haitians who had refused to give up their place in line to Respondent and his students.

   
   

3. After the altercation, Respondent got in his car and left the area. He subsequently returned to the Central Driver's License Office, where he was arrested and charged with aggravated battery with a bottle.

   
   

4. As a result of the bottle throwing engaged in by Respondent and his two students, two of the Haitians who were attacked received head injuries requiring hospital treatment.

   
   

5. On other occasions, Respondent has placed his students at the head of the line without resorting to violence in order to obtain such preferred treatment for his students.

   
   

6. On March 23, 1982, at the Central Driver's License Office, Respondent had a disagreement with Enelio Rodriguez, another driving instructor for Fajardo Driving School, over a ten-dollar charge for a rental car. When Rodriguez refused to pay Respondent the ten dollars Respondent was demanding, Respondent struck Rodriguez in the eye.

   
   

7. On March 23, 1982, Miguel Orlando Uria, a driving instructor and owner of Uria Driving School, requested Amado Perera, a driving instructor for Autosa Driving School, to move Perera's car from the starting position, so Uria could place his student in the starting position for the driving test at the Central Driver's License Office, since Uria's student was due to be tested earlier in time than any of Perera's students. Although neither Respondent's car nor Respondent's student was the subject matter of the discussion between Uria and Perera, Respondent interposed himself into the argument and became "nasty." Respondent did not strike anyone on this occasion; however, Department personnel were present.

   
   

   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 consid- ered violations of the safety require- ments 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.

         
         

         Section 15A-2.09 (2)(a), Florida Administrative Code, requires driving instructors to be of good moral character.

         
         

10. Petitioner has met its burden of proving the factual allegations contained in the Order of Summary Suspension, Notice and Administrative Complaint issued on April 8, 1982. By the time of the summary suspension of Respondent's driving instructor's certificate within five months from the date on which he was first licensed, Respondent had physically attacked both one of his co-employees and members of the general public at the Central Driver's License Office. But for the presence of Department personnel, one can only speculate how many other instances of verbal attack might have become instances of physical attack.

    
    

11. The disposition of the charge for which Respondent was arrested on January 8, 1982, is unclear. However, the disposition of the criminal charges is not dispositive of the issues in this case. Here, Respondent is charged with lacking the good moral character required by driving instructors certified by the State as persons reputable and safe to teach persons in private how to drive. Respondent's repeated acts of violence and uncontrollable temper evidence a lack of good moral character and blatant disregard for the personal safety of his co-employees, competitors, and members of the public.

    
    

12. The number of altercations initiated by Respondent at the Central Driver's License Office during the short time that his license as a driving instructor was in effect clearly reveals Respondent to lack good moral character, as defined by the Supreme Court of Florida, as follows:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's

    honesty, fairness, and respect for the rights of others and for the laws of the state and nation . . . . Florida Board of Bar Examiners, 364 So.2d 454, 458 (Fla. 1978)

    
    

    See also, Zemour, Inc. v. State of Fla. Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1 DCA 1977).

13. Respondent's conduct warrants revocation of his driving instructor's certificate. But for his possession of that certificate, Respondent would have no business at the Central Driver's License Office, where his presence endangers the safety of others.

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, Ernesto E. Luque.

RECOMMENDED this 30th 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 30th 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: 82-001211

Orders for Case No: 82-001211