DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, DIVISION ) OF FLORIDA HIGHWAY PATROL, )
vs. ) CASE NO. 87-3962
Respondent. )
) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, DIVISION ) OF FLORIDA HIGHWAY PATROL, )
vs. ) CASE NO. 87-4011
Respondent. )
This is a consolidated action of two Administrative Complaints filed by the Department of Highway Safety and Motor Vehicles (DHSMV) against Murphy's Towing ("Murphy's"), and Lyons' Auto Body, Inc. (Lyons), respectively. A Rule Challenge (DOAH Case No. 87-4975R) was also consolidated with this action, but it is the subject of a separate order.
Upon due notice, formal hearing was conducted February 16, 1988, in West Palm Beach, Florida, by Ella Jane P. Davis, the duly designated Hearing Officer of the Division of Administrative Hearings.
Mark T. Luttier, Esquire
For Respondent: R. W. Evans, Esquire,
Judson M. Chapman, Esquire Department of Highway
Section 321.051, Florida Statutes, authorizes the creation of a system for utilizing qualified wrecker operators to remove wrecked, disabled or abandoned vehicles from highways within designated zones within each county. The Department of Highway Safety and Motor Vehicles created a rotation system in which wrecker operators within designated zones are called on a rotating basis to respond to Florida Highway Patrol (FHP) calls.
The Administrative Complaints served on Murphy's and Lyons' are virtually identical. The Department alleges that Murphy's (in Zones 2, 4 and 5 of Palm Beach County) and Lyons' (in Zones 1 and 3 of Palm Beach County) should be removed from the wrecker rotation system established under Section 321.051, Florida Statutes (1987), and administered under Chapter 15B, Florida Administrative Code, for failure to comply with the following rules and policies:
A. 15B-9.003(2)
B. 15B-9.003(3)
C. 15B-9.003(8)
D. 15B-9.003(9)
E. 15B-9.004(4)
The parties' stipulated that there would be a unified record; that is, all evidence and testimony would be applicable to the Administrative Complaint proceeding and to the rule challenge proceeding. Oral testimony was received from Lt. Col. Carmody, FHP; Lt. Wessels. FHP Howard Kauff. Harold Murphy and Donald Lyons. DHSMV's Exhibits 2-9 were admitted. DHSMV withdrew its proposed Exhibit 1. Murphy's and Lyons' Exhibits 1-4 were admitted in evidence.
A transcript of proceedings was provided and the parties have submitted proposed findings of fact and conclusions of law, the proposed findings of fact of, which have been ruled upon in the appendix hereto pursuant to Section 120.59(2), Florida Statutes.
Respondents Murphy's and Lyons' are both engaged in the business of removing wrecked, disabled, stolen or abandoned motor vehicles on Florida highways. Pursuant to Section 321.051, Florida Statutes, Petitioners are eligible for, and participate in, the system established by the DHSMV for
utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles from accident scenes or the removal of abandoned vehicles when the owner or operator is incapacitated, unavailable, or leaves the procurement of wrecker service to the officer at the scene (hereafter referred to as "FHP wrecker rotation system").
Respondents are each charged in an Administrative Complaint indicating that FHP intends to remove Respondents from each respective zone's wrecker rotation system list for Respondents' respective alleged failure, among other offenses, to comply with the "place of business" requirement of Rule 15B- 9.003(2), Florida Administrative Code, and the unpromulgated non-rule "policy" interpreting the term, "place of business" as used in that rule. Petitioners received such notice by hand-delivery of the respective Administrative Complaints dated July 22, 1987.
The FHP wrecker rotation system includes designated zones and qualified wrecker operators within those zones. When a wrecker is needed to respond to an accident or to a motorist, FHP calls the wrecker at the top of the list and then rotates this wrecker down to the bottom of the list. By rotating each wrecker on the rotation list following dispatch by FHP, each participating wrecker service is afforded an equal opportunity to service a call. See Rule 15B- 9.003(3), Florida Administrative Code.
In Palm Beach County, FHP designated six zones; twenty-two wrecker businesses have qualified to participate as rotation wreckers. These wrecker companies vary according to their size and operation; qualified wrecker operators include companies with as few as one or two wreckers to as many as thirty trucks. Murphy's Towing, Lyons' Auto Body, and Kauff's Towing are among those currently operating in Palm Beach County in one or more zones of the FHP wrecker rotation system.
Petitioner Murphy's Towing has participated in the wrecker FHP rotation system for eight years. Murphy's Towing maintains approximately thirty trucks and operates in four zones in Palm Beach County. It maintains storage areas in each zone. As a result of its fleet of wreckers, Murphy's is able to use a roving patrol operation. When a call is received by Murphy's Towing from FHP, a central dispatcher operating 24 hours per day assigns a Murphy's truck which is patrolling in an assigned zone to respond to the call. In individual instances, this system may actually cut or increase response time within zones from what it might be if a truck were dispatched each time from a stationary place of business within the zone. Presently, wrecker services in Palm Beach County will dispatch the closest vehicle, regardless of the address of the wrecker truck or the location of the wrecker, even across zone lines.
Murphy's operates in Zones 2, 3, 4 and 5, and has obtained an occupational license in each of those zones without difficulty concerning whether it maintains a place of business at these locations. The Administrative Complaint seeks to remove Murphy's from rotation lists for Zones 2, 4, and 5.
Murphy's location in Zone 2 is part of an auto paint and body shop owned by another individual. The body shop has a phone, office space and personnel on duty from 9:00 a.m. to 4:00 p.m. These personnel are not on Murphy's payroll, but Murphy's has an understanding with the body shop owner that the body shop will answer for Murphy's and assist the public as necessary. Murphy's locations in Zones 4 and 5 are run in the same manner as his Zone 2 location. Murphy's does not own these locations but has an arrangement with the owner to use space at these locations.
In Zones 2, 4 and 5, Murphy's informal arrangements do not include employment of personnel on the premises and do not regulate those persons' work hours or work performed. Although a telephone is on the premises, that business telephone number is not necessarily made available to the public. Murphy's maintains no offices, telephone service, wreckers, or personnel at any of these locations.
Murphy's maintains trucks within each of the zones and requires the truck drivers to live in the zone they service so that the trucks remain in the zone.
Murphy's uses a central dispatch system to receive incoming calls from FHP and the public. The central dispatch is manned 24 hours a day and contacts the trucks which are roving within their designated zone via radio to dispatch them to the accident scene.
Murphy's tows vehicles to the storage location in the zone in which the vehicle is picked up unless the owner requests otherwise. The owner is given a card by the driver which has four phone numbers, including the central dispatch number on it, in order to assist the owner in retrieving the vehicle.
When owners call Murphy's to pick up their vehicles, their call is received by central dispatch. Arrangements are made for a truck within the zone to meet the owner to release the vehicle. Alternatively, an employee of the property owner will assist the public with release of the vehicle. Murphy's has received no public complaints of untimely response to requests for release.
Petitioner Lyons' Auto Body, Inc., has participated in the FHP wrecker rotation system for twenty years. Lyons' Auto Body, Inc. maintains seventeen trucks and operates in three zones in Palm Beach County. Lyons' Auto Body, Inc. also uses a central dispatch operation similar to that employed by Murphy's Towing.
Lyons' operates in three zones and has obtained an occupational license in each of those zones. The Administrative Complaint seeks to remove Lyons' from the rotation lists for Zones 1 and 3.
In Zone 1, Lyons' maintains a fenced storage yard, and in Zone 3, Lyons' maintains a fenced storage yard with an office and phone.
Lyons' trucks are located in the respective zones and remain in the respective zones, unless they have a request to go outside to deliver a car. After hours, the trucks are taken to the respective driver's home and the drivers are required to live in their respective zones.
When Lyons' tows for FHP, owners are given a card when the vehicle is picked up. If the owner is not present, the card is given to the FHP Trooper. There is a zone number on the card so the owner may make arrangements to release the vehicle. Lyons' has received no public complaints about release time response.
Until FHP promulgated rules which took effect January 22, 1986, including the challenged Rule 15B-9.003(2), Florida Administrative Code, the general operation of the wrecker rotation system was governed by written
guidelines and policies established by the local troop commanders, but these written guidelines apparently never embraced the term "place of business" nor defined it. (TR 67-69, 102).
Since that date, however, there has been such a duly promulgated rule, Rule 15B-9.003(2), Florida Administrative Code, which provides:
To be eligible for approval to tow in a particular zone, the wrecker operator's place of business must be located in that zone, except that if there are no qualified operators in a particular zone, the Division Director or his designee may designate qualified out of zone wrecker operators to be called in that zone.
This rule was determined to be a valid exercise of legislatively delegated authority in the rule challenge case originally consolidated herewith.
At the time of the promulgation of Rule 15-9.003(2), Florida Administrative Code, in January, 1986, "place of business," as the term is used in that rule, was not defined under Chapter 321, Florida Statutes or Chapter 15- 9, Florida Administrative Code. Because Lt. Col. Carmody believed "place of business" was already defined by common sense and thirty-two years of common FHP interpretation so as to already include a sign, office space, personnel on location in the zone, wreckers on location in the zone, and zone addresses and phone numbers painted on each wrecker, Lt. Col. Carmody did not feel that it was necessary to promulgate an additional rule defining "place of business." Instead, Lt. Col. Carmody gave his "common sense" definition orally when occasional inquiries were made.
By letter dated January 19, 1987, Howard Kauff, Chairman of the Board of Palm Beach Services, Inc., d/b/a, Kauff's Towing in three FHP zones in Palm Beach County requested of FHP the definition of "place of business." His letter set out six criteria stating what he understood to be the definition of "place of business."
Lt. Col. Carmody responded to Howard Kauff by memorandum dated February 5, 1987. Carmody sent a copy of that memorandum to Inspector William
Clark, Bureau Chief in charge of Troop L and to Major William R. Driggers, Troop Commander, Troop L, for the purpose of enforcing Rule 15B-9.003(2) and correcting alleged violations, but he intended for the six criteria identified in his memorandum to have statewide effect. The six non-rule policy criteria incidental to Rule 15B-9.003(2), which were identified by Lt. Col. Carmody in his memorandum to Howard Kauff, and circulated to all of Troop L, were as follows:
There must be a sign on the building that identifies it to the general public as a wrecker establishment;
There must be office space;
They must have personnel on duty at least from 9:00 a.m. to 4:00 p.m., Monday- Friday.
There must be a phone at the place of business;
Tow trucks must be stationed at the place of business;
The tow trucks must have the zone address and phone numbers on them.
The non-rule policy in Carmody's memorandum, which for the first time interpreted, in writing, the term "place of business," virtually adopts the criteria suggested in Mr. Kauff's letter, with only two exceptions. Lt. Col. Carmody did not disseminate a similar memorandum to all troop commanders throughout the State of Florida until January 8, 1988. (See Finding of Fact 28).
Upon receiving Lt. Col. Carmody's response of February 5, 1987, Howard Kauff wrote Captain Hardin of Troop L, asking for removal of several wrecker operators, among them, Murphy's and Lyons', which operators Kauff had identified as allegedly failing to comply with the six "place of business" criteria specified by Lt. Col. Carmody.
Lt. Wessels subsequently conducted an investigation to determine if any of the wrecker services identified by Howard Kauff were in fact in violation of Rule 15B-9.003(2), as interpreted by Lt. Col. Carmody's memorandum of February 5, 1987. For varied reasons, including not being able to locate some satellite business addresses, Lt. Wessels concluded that eight companies did not comply with the policy criteria and recommended their removal from the appropriate rotation list. Lt. Wessels inspected the locations of Murphy's Towing in Zone 2 (Juno Beach and Riviera Beach), Zone 4 (Lake Worth) and Zone 5 (Hypoluxo) on April 7, 1987. The inspections revealed a vacant lot at the Juno Beach location with a sign indicating "Dad Auto Broker, Inc." and a business identified as "Elite Paint and Body Shop" at the Riviera Beach location.
Members of the Highway Patrol could not locate the Lake Worth and Hypoluxo addresses, but admittedly, no one phoned ahead for directions. No wreckers were present at the addresses found. Lt. Wessels also inspected the locations of Lyons' Auto Body in Zone 1 (Jupiter) and Zone 3 (West Palm). The inspections revealed a small fenced lot at the Jupiter location with a sign, "Lyons Auto Body, Inc." and the address and phone number, and a fenced lot with an unoccupied building which maintained a sign indicating the name, address, and phone number at Palm Beach. No wreckers were present at Jupiter. At least three wreckers were present at the Zone 3 (West Palm Beach) location, but no personnel were observed. Petitioners Murphy's Towing and Lyons' Auto Body, Inc. were included in the eight wrecker services identified by Lt. Wessels.
Following Lt. Wessels' investigation, FHP issued to the eight wrecker companies Orders to Show Cause why they should not be removed from the appropriate rotation list. Three of the wrecker services complied with the "place of business" requirement. Wessels recommended that the remaining five, which included both Petitioners Murphy's and Lyons' be removed. Pursuant to Wessels' recommendations, the Department issued Administrative Complaints against the five wrecker operators. Three wrecker operators were removed from this respective list--two voluntarily and one by Order of the DHSMV.
Murphy's has participated in the wrecker rotation system for eight years without any complaint, citation, or criticism for untimely response. Its main place of business and wreckers have been inspected each of the years immediately prior to service of the Order to Show Cause without any FHP comment on its failure to comply with the "place of business" rule or non-rule policy, despite Lt. Wessels' being aware of Murphy's multi-zone operation as early as May 16, 1986. The July 22, 1987, Administrative Complaints against the
Petitioners enunciate only the non-rule policy as it had evolved up to February 5, 1987, and as set out in Finding of Fact 22 supra., not as it had evolved as of the January 8, 1988, statewide memorandum described in Finding of Fact 28 infra. Lyons' has participated in the wrecker rotation system for twenty years without any FHP concerns over untimely response. Its history of successful yearly inspections and no FHP comment concerning the "place of business" rule and non-rule policy has been identical to Murphy's for the last three years immediately preceding the Order to Show Cause.
Murphy's and Lyons' are two of Kauff's largest competitors. Of the ten multi-zone wrecker operators in Palm Beach County, only Mr. Kauff's and one other met the criteria suggested by Kauff's letter and enforced by non-rule policy prior to the Orders to Show Cause. See Finding of Fact 25.
Lt. Col. Carmody did not disseminate a memorandum covering the non- rule policy to all troop commanders throughout the State of Florida until January 8, 1988. He did circulate such a memorandum on that date, but only after his deposition had been taken in the instant and companion rule challenge case. At the time Lt. Col. Carmody corresponded with Howard Kauff on February 5, 1987, Palm Beach County was the only area, to his knowledge, which had experienced problems with the "place of business" interpretation because of the use of multiple zone wreckers. Lt. Col. Carmody had no knowledge of similar problems in any other area of the state at that time. Testimony of Carmody and Wessels at formal hearing confirmed this to also currently be the case. Specifically, there is affirmative evidence that FHP has experienced no similar use of wreckers in multiple zones in the Fort Myers area and no requests for interpretation of the rule from that area of the state or any other. Carmody's January 8, 1988, memorandum was intended to insure uniform application of the six "place of business" criteria which Carmody had previously assumed where generally known and applied throughout FHP. The January 8, 1988 statewide memorandum contained some further refinements and embellishments of the language contained in the earlier memorandum to Kauff and Troop L in Palm Beach County, but the only substantive changes were that for the fifth criterion, the wrecker operator was required to "maintain at least one tow truck at the place of business" and for the sixth criterion, the zone address and phone numbers must be "clearly visible to the public." The 1988 memorandum also contained the further directive that:
I recommend that you correspond with each wrecker operator to give the wrecker service notice that the above criteria must be met for the wrecker to comply with the requirements of Rule 15B-9.003(2).
Subsequent inspections by FHP personnel of wrecker service shall require compliance noted and the wrecker service given an opportunity to correct any deficiency. If the wrecker operator fails to correct any violation after notice by FHP personnel, Order to Show Cause should be issued to the wrecker service advising that noncompliance will result in the removal of the wrecker service from the rotation list. Following the issuance of the Order to Show Cause, the Office of General Counsel should be advised to take action to remove the
wrecker service from the rotation list if the wrecker service has failed to comply with the place of business criteria. [Emphasis supplied, Exhibit P-4.]
The non-rule policy appears then to have evolved at least by that point in time to clearly include written warnings prior to enforcing the criteria at a subsequent inspection. The parties have, however, stipulated that as to the six enumerated criteria, the language employed in February 1987, not January 1988, is the non-rule policy FHP is enforcing and intends to enforce. Other evidence suggests that it was always the Patrol's practice that warnings precede an Order to Show Cause.
In January, 1988, FHP learned that Kauff's Towing did not maintain office personnel at its business location in Lake Worth, Zone 4 from 9:00 a.m. to 4:00 p.m., Monday through Friday. Kauff was verbally advised by FHP of the noncompliance. This notice was followed by written confirmation on January 20, 1988 and February 10, 1988. In response to this notice by FHP, Howard Kauff directed his terminal manager to provide personnel at the location during the required time period. Kauff was advised that noncompliance with the criteria would result of removal of Kauff's from the rotation list in Zone 4, Palm Beach County.
At formal hearing, Lt. Col. Carmody stated that his memoranda did not address whether outside or inside storage must be available in a zone. In his opinion, FHP could not regulate that aspect due to prior Attorney General Opinion 85-60. He opined that a wrecker operator's using a central dispatch may be sufficient although the criteria he seeks to enforce requires a phone at each place of business. Lt. Wessels essentially concurred. Lt. Wessels was unsure how response time would be adversely affected if a truck were maintained in the assigned zone but there was not a building located in the assigned zone or if a tow truck were not physically located at the building location designated as a place of business in the zone but was either patrolling in the zone or parked elsewhere in the zone. Lt. Wessels was unable to testify whether ownership or rental of a building by an operator had significance with regard to the "place of business" rule or the six non-rule policy criteria. Lt. Wessels would accept, within the six criteria, an operator's use of a storage lot maintained by the lot's owner who was not an employee of the wrecker operator. However, it was not demonstrated that Lt. Wessels is in a policy making position for the agency, and his testimony as to the foregoing matters at best demonstrates some further confusion as to how the six interpretative non-rule policy criteria are to be applied on a case by case basis. It does not demonstrate that those six criteria have been applied to Petitioners in any unequal fashion, merely that application of the six criteria is best made on a case by case basis.
In the course of discovery, Respondent agency denied the following Request for Admission, "2. Admit that the interpretation of the place of business requirement has not been equally applied to all wrecker operators in the State of Florida." The evidence as a whole does not demonstrate such unequal application of the promulgated rule or the non-rule policy to Respondents in this cause. Nor is the proof sufficient to establish such arbitrary application to Respondents so as to permit them to avoid the necessity for compliance. Apparently, as of the date of formal hearing, both rule and
non-rule policy are being applied evenhandedly in Palm Beach County where violations have been documented. The testimony of Lt. Col. Carmody and Lt. Wessels demonstrates that no reports of violation have been made from other counties. Respondents did nothing to refute this testimony nor did they provide
any evidence of multiple zone operators in other counties or zones outside of Palm Beach County who were systematically permitted to evade the rule and/or non-rule policy.
The non-rule policy has been sufficiently explicated in the course of this proceeding so that it may be applied with reasonable precision. The agency's primary purpose behind the place of business non-rule policy, as is its purpose for Rule 15B-9.003(2) itself, is to insure prompt response time, which Lt. Col. Carmody and Lt. Wessels view as impacting on overall traffic safety. Specifically, the concerns of FHP are that without a sign on the place of business, the wrecker operator is difficult to locate. Lt. Wessels personal experience in being unable to locate certain operators during his subsequent investigation in preparation for the Administrative Complaints demonstrates this concern is valid. A sign assists the public in locating the wrecker service for retrieval of towed vehicles or personal property. It assists in accident investigation and reconstruction by providing quick access to the towed vehicle by insurance investigators/appraisers and by FHP. The office space requirement, the requirement of a telephone on the premises, and the requirement of the presence of office personnel during reasonably specified business hours encourages wrecker services to serve the public by receiving phone calls, permitting payment of towing bills or securing the release of vehicles or personal property, and assists in dispatching wreckers in timely response to FHP rotation call made by telephone. It was established that in Palm Beach County, at least, FHP rotation calls are, in fact, made by telephone. It is noted that these foregoing criteria relating to telephone contact are also consistent with unchallenged Rule 15B-9.003(8) and (9) and that the hours of 9:00 a.m. to 4:00
p.m. are considerably less for office personnel than the 24 hours per day "on call" status specified in Subparagraph (9). These foregoing requirements help to insure a reasonable response time, as does the requirement that the wrecker be stationed at the place of business within the zone. The requirement that the wrecker be stationed at the place of business within the zone also facilitates timely inspections of each vehicle by the FHP. Painting the name, address, and telephone number on each truck fosters accountability of the wrecker operators, insures the reasonable response time due to their presence within the zone, and it may be inferred from all other evidence that it discourages vehicle equipment from being moved from truck to truck. It is further noted that the truck sign requirement is also consistent with Section 715.07(2)(a)7, Florida Statutes, regulating the towing of vehicles from private property.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Sections 120.57(1) and 120.60(7), Florida Statutes.
Petitioner's authority to establish a wrecker operator call allocation system is established pursuant to Sections 321.051 and 321.14, Florida Statutes.
Petitioner has adopted Rule Chapter 15B-9, Florida Administrative Code, implementing Section 321.051, Florida Statutes. Rules 15B-9.003(2) and
require operators to maintain a place of business within the zone they serve. Rule 15B-9.003(2) was challenged in a companion case and found to be valid in a separate order.
Respondents are charged in the respective Administrative Complaints with violations of Rules 15B-9.003(2), (3), (8), and (9) and Rule 15B-9.004(4), Florida Administrative Code, and with violation of the following non-rule policy
adopted February 5, 1987 and specifically set forth in the respective Orders to Show Cause issued April 10, 1987 and the respective Administrative Complaints issued July 22, 1987.
Florida Administrative Code Rules pertinent to this cause provide: 15B-9.003--
To be eligible for approval to tow in
particular zone, the wrecker operator's place of business must be located in that zone, except that if there are no qualified operators in a particular zone, the division director or his designee may designate qualified out-of-zone wrecker operators to be called in that zone.
Wrecker operators located within a zone as defined herein shall be called for the removal of a wrecked, disabled, stolen or abandoned vehicle by a division according
to the operator's placement on a wrecker rotation list a as maintained for that zone by the division and according to the wrecker classification for a size of the vehicle to be towed. Wrecker operators will be called in succession from the top of the list. Following each call an operator will be rotated to the bottom of the list except as provided herein. An operator may respond to a call with a tow truck classified to meet or exceed the size of the vehicle to be towed.
... Wrecker operators shall have one day and one night telephone number ...
Wrecker operators shall be on call twenty-four hours a day, seven days a week.
15B-9.004--
(4) When a vehicle is released at the scene by the investigating trooper or representative of the division, the wrecker operator shall tow to any location the owner requests within the limits of the zone.
The non-rule policy with which Respondents are charged provides:
There must be a sign on the building that identifies it to the general public as a wrecker establishment;
There must be office space;
The office must have personnel on duty at least from 9:00 a.m. to 4:00 p.m. Monday through Friday;
There must be a phone at the place of business;
Tow trucks must be stationed at the place of business;
Tow trucks must have the zone address and phone numbers on them.
Rule 15B-9.007 sets forth grounds for denial, removal or suspension from the rotation list, to include failure to comply with the rules.
The Department has carried its burden in explicating the six non-rule criteria set forth above, however it has also been shown that the criteria set forth above has evolved yet further since the filing of the administrative complaints and has always required some notification or warning prior to service of an Order to Show Cause.
The Administrative Complaint seeks to remove Murphy's from Zones 2, 4 and 5. Evidence adduced at hearing shows clearly that with regard to Murphy's in Zones 2, 4 and 5, there is no sign identifying the location as Murphy's and the office space and telephone, if any, is manned by persons not controlled by Murphy's. The fact that the personnel on the premises are not direct employees of Murphy's is insignificant; the fact that Murphy's has no direct formal control over them is significant. The fact that the phone is not registered to Murphy's or made public and that two of the locations cannot be located readily by the FHP clearly militates against there being a "place of business" in the zone as the term "place of business" is normally understood even if only the Rule 15B-9.003(2) were applied and not the non-rule policy. That wreckers were not found at all locations does not constitute a violation of the non-rule policy, given the broad parameters testified to for how the word "stationed" may be interpreted. There has, however, been no proof of Murphy's violation of Rules 15B-9.002(3), (8), (9) or 15B-9.004(4). Specifically, subsection (8) does not require two separate day and night phone numbers nor does it require that the phone number be specifically assigned to each place of business by zone. Rules 15B-9.003(3) and 15B-9.00(4) do not prohibit towing outside a zone if requested by an owner. Moreover, Rule 15B-9.003(10) permits crossing zone lines upon appropriate call by a trooper, and the non-rule policy as explicated here does not preclude a dispatch system as testified by Lt. Col. Carmody.
The Administrative Complaint seeks to remove Lyons' from Zones 1 and
Upon the foregoing findings of fact and conclusions of law it is recommended that the Department of Highway Safety and Motor Vehicles enter a final order providing:
DONE and ORDERED this 22nd day of July, 1988, at Tallahassee, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-3962, 87-4011
The following constitute rulings upon the parties' respective proposed findings of fact (PFOF).
3-4. Accepted in FOF 24.
5-6. Accepted in FOF 18-22.
7-8. Subordinate and unnecessary.
9-10. Accepted in FOF 21, except as unnecessary.
11-12. Accepted as modified to conform to the competent substantial evidence as a whole 21-23, 32.
15-17. Accepted as modified to conform to the record in FOF 8, 11, 24. 18-19. Accepted in FOF 25.
1. Accepted in FOF 6.
2-3. Accepted in FOF 7.
8-15. Accepted in FOF 24, 26.
16-18. Accepted in FOF 24.
19-23. Accepted in FOF 13-17.
24-27. Accepted in FOF 26.
28-29. Accepted in FOF 18-20.
30-31. Accepted in FOF 21-22, 28.
35-37 Subordinate and unnecessary. 38-39. Accepted in FOF 30.
46-49. Accepted in FOF 30.
50. Rejected as set forth in the full FOF and Conclusions of Law.
Leonard R. Mellon, Executive Director Department of Highway Safety
DONE AND ORDERED this 13th day of September, 1988.
BOBBY R. BURKETT, Colonel
Filed with the official records of the Division of Florida Highway Patrol this 13th day
of September, 1988.
R. W. Evans, Esquire Judson M. Chapman, Esquire
Odette Marie Bendeck, Esquire Mark T. Luttier, Esquire Michael S. Tammaro, Esquire 777 South Flagler Drive
Ella Jane P. Davis, Hearing Officer Division of Administrative Hearings The Oakland Building
