STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

H. B. WALKER, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-4371RU

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4951

)

1. B. WALKER, INC., )

   )

   Respondent. )

   )

   
   

   FINAL ORDER (CASE NO. 95-4371RU)

   
   

   Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled consolidated cases on July 17, 1996, in Tallahassee, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Thomas V. Infantino, Esquire

   INFANTINO AND BERMAN

   180 South Knowles Avenue, Suite 7 Post Office Drawer 30

   Winter Park, Florida 32790

   
   

   For Respondent: Paul Sexton

   Chief, Administrative Law Department of Transportation

   Haydon Burns Building, Mail Station 58 605 Suwannee Street

   Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

   The issues to be resolved in this proceeding concern H. B. Walker's challenge to the validity of certain Department of Transportation (DOT) rules and certain DOT statements that H. B. Walker contends are un-promulgated rules.

   
   

   In its original petition and in a supplemental challenge filed on September 29, 1995 (styled "Supplement to H. B. Walker, Inc.'s Response to Respondent's

   Motion to Dismiss/For More Definite Statement"), H. B. Walker challenged existing rules 14A-1.004, 14A-1.007, 14-87.002 and 14-87.011(1), Florida Administrative Code. H. B. Walker also challenged these written and verbal statements as un-promulgated rules:

   
   

   1. Chapter 18 of the DOT Motor Carrier Compliance Operations Manual;

   2. Statements by Colonel Jack McPherson regarding the authority to impound a motor vehicle for nonpayment of penalties; and

   3. Statements by Captain E. A. Brown that a DOT Safety Report and Field Receipt is a lien document, effective immediately when issued at the conclusion of a terminal audit.

      
      

      More specifically, H. B. Walker contends that the DOT has no authority to require a motor carrier to pay a penalty, post a bond or surrender a vehicle to impoundment prior to hearing and final agency action when the motor carrier protests record-keeping violations alleged after a terminal audit by the agency. Rules, promulgated and un-promulgated, which provide that summary procedure, are invalid according to H. B. Walker's petition and supplemental filing.

      
      

      DOT contends that the issue is moot as the result of rule amendments and that the challenged statements are not rules, or they merely reflect provisions of existing rules.

      
      

      PRELIMINARY STATEMENT

      
      

      In response to a terminal audit, assessment of a $4,000 fine and subsequent impoundment of Walker's vehicle by the Department of Transportation (DOT), Walker filed a petition with the Division of Administrative Hearings (DOAH) on September 1, 1995, pursuant to Sections 120.535, 120.56 and 120.57, Florida Statutes, challenging certain DOT rules.

      
      

      On September 25, 1995, Walker filed with the DOT a request for formal hearing, pursuant to Section 120.57(1), Florida Statutes, in response to a written decision of the Commercial Motor Vehicle Review Board upholding the findings of record-keeping violations and the $4,000 civil penalty.

      
      

      After the latter petition was forwarded to DOAH, and at the request of the parties, both cases were consolidated for consideration in a single evidentiary hearing. By necessity, two orders: one recommended, one final, are being issued.

      
      

      At the commencement of the hearing, after argument by counsel, the Administrative Law Judge granted Walker's Motion to Realign Parties in Case No. 95-4951. In so ruling, the Judge determined that DOT has the burden of proving that the alleged violations occurred and that the proposed penalty is appropriate.

      
      

      The following witnesses were presented by DOT at hearing: Officer Terron

      R. Lindsey, Captain E. A. Brown, Lieutenant Colonel Robert W. Ball, and Elyse Kennedy. Fifteen (15) exhibits, marked DOT or Petitioner's Exhibit Numbers 1- 15, were received into evidence, including Exhibit Number 9, a deposition of Joseph Warren.

      Herb Walker testified on behalf of Walker. Respondent Walker's Exhibit Numbers 1-11 were received into evidence, including Exhibit Numbers 8, 9 and 10, which are depositions of E. A. Brown, Luis Phelps and Terron Lindsey. A deposition of John Valois was marked and received into evidence as "Joint Exhibit Number One".

      
      

      At the request of the parties and as reflected on the record, the Administrative Law Judge took official recognition of a series of federal and state regulations. These include the federal regulations (1993 and 1994 versions of 49 CFR, Parts 390, 391 and 396) filed on October 7, 1996.

      
      

      A transcript was prepared and was filed on September 6, 1996. Thereafter, the parties filed Proposed Final Orders and Proposed Recommended Orders, according to a schedule agreed upon by the parties and extended to October 18, 1996, with the consent of the Administrative Law Judge.

      
      

      FINDINGS OF FACT

      The Parties

      
      

      1. H. B. Walker, Inc. is in the business of demolition, excavation and land clearing. The company transports heavy equipment to and from job sites and transports debris from job sites and is a commercial motor carrier. The company maintains a terminal for its motor vehicles at 1913 Bruton Boulevard, Orlando, Florida.

         
         

      2. All commercial motor carriers operating over the public highways in Florida are subject to certain federal regulations governing driver and vehicle safety and record-keeping. Those federal regulations are adopted by reference in the Florida Statutes, which statutes are amended from time to time to address a later version of the federal regulations.

         
         

      3. The DOT has the authority and responsibility to enforce those safety and record-keeping requirements, which it does, in part, through terminal audits, sometimes called "compliance reviews".

         
         

         The Process

         
         

      4. On April 18, 1995, after conferring with his supervisor, Officer Terron Lindsey, a seasoned agency motor carrier compliance officer, visited H. B. Walker's terminal and conducted a review of Walker's records. As a result of the review, Officer Lindsey found multiple violations of the record-keeping requirements of 49 CFR, parts 391 and 396. He advised Walker's personnel that he would return in 60 - 90 days and no penalty would be imposed if the violations were corrected.

         
         

      5. On a follow-up audit on July 12 and 13, 1995, Officer Lindsey found that some, but not all corrections were made. On August 1, 1995, the agency issued to H. B. Walker a Safety Report and Field Receipt stating the violations and citations to the federal rules and assessing penalties in the total amount of $4,000. Officer Lindsey delivered the Safety Report and Field Receipt to Walker's terminal and was told that the penalty would not be paid.

         
         

      6. Walker did not pay the $4,000, but protested the agency's findings to the Commercial Motor Carrier Board (Board). By 1995 the DOT had some brief experience with conducting terminal audits and assessing penalties for record- keeping violations, but this was the first time that a motor carrier had refused to pay the penalty prior to presenting its protest to the Board.

      7. Captain E. A. Brown, Officer Lindsey's supervisor, called the Tallahassee headquarters of DOT's motor carrier compliance office and the DOT's legal office to find out how to proceed. As motor carriers are aware, DOT exercises authority in road-side safety inspections to require immediate payment of any penalty or to impound the vehicle when a compliance officer issues a citation.

         
         

      8. Based on DOT's existing rules, Chapter 18 of the Motor Carrier Compliance Manual and experience with road-side safety enforcement, Colonel McPherson advised Captain Brown that the agency had authority to impound an H.

         B. Walker vehicle.

         
         

      9. After receiving directions from his headquarters, Captain Brown wrote letters to H. B. Walker and orally informed Walker's employee, John Valois, that if the penalty were not paid, a vehicle would be held, consistent with past enforcement actions on non-payment of penalties.

         
         

      10. On August 28, 1995, at the direction of Captain Brown, Officer Rick Hunter detained one of Walker's vehicles and impounded it at a DOT maintenance yard.

          
          

      11. In the meantime, after the Board received H. B. Walker's request for a hearing on the violations, the Board's Executive Secretary, Elyse Kennedy, telephoned Walker's counsel and told him that the Board could not hear his case until the penalties were paid, or a bond was posted. Later, after confirming with DOT legal staff, Ms. Kennedy sent a letter advising Walker's counsel that the Board could schedule and hear the case, as the impoundment of a vehicle was equivalent to payment of the penalties or the bond.

          
          

      12. H. B. Walker's case was scheduled with consultation with Walker's attorney. On the appointed date, when no representative from H. B. Walker appeared, the Board considered written material submitted by Walker's attorney and testimony from Officer Lindsey.

          
          

      13. The Board notified H. B. Walker of its denial of relief in a letter dated September 15, 199[5]. The letter states in pertinent part:

          
          

          Dear Sir:

          
          

          Pursuant to Section 316.545, Florida Statutes, the Commercial Motor Vehicle Review Board at its meeting of July 13, 199[5], carefully reviewed all of the information placed before it and determined that a refund was not appropriate in this case for the following reason.

          After hearing testimony of Officer Lindsey and Captain E. A. Brown, the Board felt that

          H. B. Walker, Inc. was not in compliance with CFR 391.51; CFR 391.43; CFR 391.103 and CFR 396.3.

          Pursuant to Rule 14A-1.012, Florida Administrative Code, you are entitled to request a rehearing in this matter by filing such a request with the Executive Secretary within ten (10) days of the receipt of this

          letter.

          Pursuant to Chapter 120, Florida Statutes, you have the right to either a formal or an informal hearing. A formal hearing will be granted where disputed issues of material fact exist; in other words, where you disagree with the specific facts contained in this letter upon which the Commercial Motor Vehicle Review Board bases its intent to deny your request for refund. All requests for either type of hearing must be in writing.

          * * *

          You are hereby notified that the conclusion contained in this letter shall become final with 21 days of receipt of this letter, unless, you file a written request for an informal or formal Administrative hearing pursuant to Section 120.57, Florida Statutes, with the Clerk of Agency Proceedings within

          21 days.

          * * *

          
          

          Walker's timely request for a formal hearing tolled the Board's conclusion.

          
          

          The 1995 Rules

          
          

      14. In 1995, at the time of the H. B. Walker terminal audit and ensuing Board meeting, rules 14A-1.004 and 14A-1.007, Florida Administrative Code, provided, in pertinent part:

          
          

          14A-1.004 Meetings

          
          

          . . . Only penalties which have been paid or for which a Section 316.545 bond has been posted, will be considered by the Review Board.

          
          

          14A-1.007 Timely Written Request for Meeting

          
          

          Any person who is aggrieved by the imposition of a civil penalty imposed upon the provisions of section 316.545 or 316.3025, Florida Statutes, after payment of the penalty, or posting a section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office in writing within 60 days of the date of the penalty notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested . . . .

          
          

      15. At the relevant period, rules 14-87.011(1) and 14-87.002 provided, in pertinent part:

          
          

          14-87.011 Definitions

          * * *

          
          

          1. "Citation" means:

             1. A Load Report and Field Receipt

                issued to the owner or driver of a commercial motor vehicle for violation of weight and vehicle registration laws: or

             2. A Safety Report and Field Receipt issued to the owner or driver of a commercial motor vehicle for violation of safety laws and regulations and permit violations; or

             3. The penalty portion of an I. R. P. Trip Permit & Temporary Fuel Use Permit issued to the owner or driver of a commercial motor vehicle in violation of the fuel use tax requirements contained in Chapter 207, Florida Statutes.

                
                

                14-87.002 Penalties and Fees Due

                
                

                Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. . .

                
                

                The 1996 Amendments

                
                

      16. On June 7, 1996, DOT published notices of rule-making, proposing to amend various provisions of rule chapters 14-87, 14-108 and 14A-1. On July 16, 1996, the agency filed the amendments to Chapter 14A-1 for adoption, and those amendments became effective August 5, 1996. The amendments to Chapters 14-87 and 14-108, Florida Administrative Code, became effective in September 1996.

          
          

      17. The cumulative effect of these amendments is to distinguish between the penalty process for road violations and the process for violations found during a terminal audit/compliance review. The amendments provide that a commercial motor carrier who has been assessed penalties for violations found during a terminal audit may obtain a Review Board hearing prior to payment or posting a bond. The amendments also distinguish between a "notice of non- compliance" issued after a terminal audit to advise the carrier of violations and the penalties that will be assessed if the violations are not corrected, and a "notice of violation" which identifies the violations and assesses penalties.

          
          

      18. DOT's amendments to chapter 14-87, Florida Administrative Code, are, in relevant part, as follows: (Underlined material has been added, material struck through has been deleted.)

          
          

          14-87.0011 Definitions

          * * *

          
          

   4. "Penalty" means a monetary amount prescribed by statute or Department rule as a civil penalty to be assessed administratively for a violation of a commercial motor vehicle law pursuant to the issuance of a citation or a notice of violation.

* * *

1. "Notice of Violation" means a notice

   of violation as defined by Rule 14-108.002(5).

   * * *

   14-87.002 Penalties and Fees Due; Detaining and Impounding Motor Vehicles When Citation or Permit Issued

   1. Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. Penalties due under chapter 14-108 are due in accordance rule 14-108.004. All penalties and fees not guaranteed by a Surety Bond must be paid to the officer or inspector issuing the citation or permit or detaining the vehicle

      for nonpayment of penalties prescribed under rule 14-108.005 prior to further operation of the affected commercial motor vehicle on the roads of this State. Payment may be in cash, by cashier's check or by money order. In the event that payment is not made when payment is due, the motor vehicle will be impounded in accordance with sections 316.3025 or 316.545, Florida Statutes.

   2. When a Surety Bond has been properly filed and accepted by the Department, the vehicle will be released upon presenting written evidence of the surety bond to the officer or inspector detaining the vehicle the citation or permit will be issued to the owner or driver of the vehicle, and payment must be remitted to the officer or inspector who issued the citation or permit within ten working days of the release of the vehicle date of issuance. Company checks may be accepted when a proper Surety Bond is on file. In the event that payment is not made within ten working days of release of the vehicle, the Department will take action to

      recover the penalty amount from the surety bond.

   3. Motor vehicles impounded in accordance with this rule will be released upon payment of the penalty or the posting of a bond pursuant to Section 316.545, Florida Statutes, or upon a determination by the Commercial Motor Carrier Review Board to cancel or

      revoke the penalty or upon the issuance of a Department order setting aside the penalty as the result of a proceeding held pursuant to section 120.57, Florida Statutes. Motor vehicles released as a result of the posting of a bond under section 316.545, Florida Statutes, remain subject to the lien imposed by that statute.

      1. The Department's amendments to chapter 14-108, Florida Administrative Code, are, in relevant part, as follows:

         
         

         14-108.002 Definitions

         * * *

   4. "Notice of Noncompliance" means a notice issued to a motor carrier that advises the motor carrier of violations found during a terminal audit/compliance review and identifies the penalties that will be assessed if the violations are not corrected within 60 days of receipt of

      the notice.

   5. "Notice of Violation" means a written notice which identifies violations of safety laws and regulations found during the conduct of a terminal audit/compliance review and assesses penalties pursuant to these rules. Such a notice will be issued after violations are found and penalties are to be assessed under this Chapter.

   6. (5) "Penalty" means a monetary amount prescribed by statute as a civil penalty to be assessed administratively for violation(s) of safety laws and regulations found during the conduct of a terminal audit/compliance review.

   7. (6) "Terminal Audit" or "Compliance Review" means an onsite investigation at a motor carrier's terminal or office of property carrier or passenger carrier records such a driver's hours of service, maintenance and inspection, driver qualification, commercial drivers license requirements, financial responsibility, accidents and other safety and business records to determine compliance with the safety laws and regulation. The investiga- tion will compliance review may result in the initiation of an enforcement action to include the assessment of the applicable penalty(ies) prescribed by statute and this rule chapter.

14-108.003 Applicability; Compliance Required

* * *

1. Any person or motor carrier who operates or causes or permits nonpublic- sector buses to be operated on any road, street, or highway open to travel by the public in the transportation of passengers shall be in compliance with the applicable safety laws and regulations contained in section 316.70, Florida Statutes, and Title

   49 C.F.R. Parts 382, 385 and 390 through

   397 301, 393, 394 and 396. Any person or

   motor carrier found to be in violation of these rules during the conduct of a terminal audit or compliance review shall be subject to the penalties herein described.

2. The penalties prescribed by rule 14-108.105 will be waived and a notice of

   violation will not be issued if, as a result of the first terminal audit or compliance review conducted of a Motor Carrier, the Motor Carrier corrects the described violations within 60 days after receipt of a written notice of noncompliance.

   Penalties for the following violations will not be waived under the above provision, even if they are found during the first terminal audit or compliance review and are corrected immediately.

   1. Failure to comply with controlled substance testing requirements

   2. Exceeding driver hours of service.

   3. Violations involving hazardous materials.

   4. Lack of valid commercial driver's licenses, including revoked, suspended or cancelled licenses.

      
      

      14-108.004 Administration: Enforcement.

      
      

      1. All penalties imposed and collected in accordance with these rules shall be paid to the treasurer, who shall credit the total amount collected to the State Trans- portation Trust Fund in accordance with section 316.3025(5)(b), Florida Statutes.

         Penalties assessed as a result of a terminal audit are due and shall be paid no later than ten working days after receipt of the notice of violation, unless a timely appli- cation is made to the Commercial Motor Vehicle Review Board under rule 14A-1.007, in which case the penalty (or the remaining part thereof) is due and shall be paid no later than ten working days after receipt

         of a written decision by the Review Board sustaining the penalty in whole or in part.

      2. Whenever any person or motor carrier violates the provisions of these rules and becomes indebted to the State because of such violation(s) and refuses to pay the appropriate penalty, the penalty becomes a lien upon the property including the motor vehicles of such person or motor carrier and may be foreclosed by the State in a civil action in any court of this state as prescribed by section 316.3025(4), Florida Statutes. Motor vehicles of the person or

motor carrier will be detained and impounded for nonpayment in accordance with

Rule 14-87.002.

1. The adopted amendments to Chapter 14A-1, Florida Administrative Code, are, in relevant part, as follows:

   
   

   14A-1.004 Meetings

   
   

   The Review Board shall sit as an admin- istrative body in equity to consider testimony or written documents in mitigation, extenuation, modification, cancellation, revocation, or maintenance of any penalty or penalties imposed pursuant to 316.540, 316.545, or 316.3025, Florida Statutes.

   Only penalties which have been paid or for which a section 316.545 bond has been posted, will be considered by the Review Board.

   However, this provision shall not prevent the owner of a motor vehicle that has been impounded for nonpayment from receiving a Review Board hearing. Further, as provided in Rule 14-108.004, a motor carrier may obtain a Review Board hearing on penalties assessed as a result of a terminal audit prior to payment or posting of a bond.

   1. Review Board meetings may be scheduled as often as determined necessary, based on a sufficient number of penalties being avail- able for review to justify the expense of hold a meeting. The Review Board shall meet not less than six times per year. Location of meetings shall be determined by the

      Review Board. Upon timely written request, cases involving Florida based persons will be scheduled at the next meeting held in their geographic area. However, cases involving requests for Review Board conside- ration of unpaid penalties imposed for violations found during a terminal audit will be scheduled for the next meeting regardless of location. Upon timely written request, cases involving non-Florida based

      persons will be scheduled at the next meeting of the Review Board. Persons may request the scheduling of their case at a specific city at which the Review Board meets. Such requests must be in writing to the Commercial Motor Vehicle Review Board, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0450.

      * * *

      14A-1.007 Timely Written Request for Meeting

      
      

      Any person who is aggrieved by the imposition of a civil penalty imposed upon the pro- visions of Section 316.545 or 316.3025, Florida Statutes upon compliance with Rule 14A-1.004, after payment of the penalty, or posting a Section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office

      in writing within 60 days of the date of the Penalty Notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested.

      The request shall set forth in detail the basis of the protest and all matters to be considered so that the Review Board can be prepared to discuss the issue at the meeting if the protestor does not appear. The request must be received within 60 days. A

      written request for Review Board consideration of a penalty imposed for violations found during a terminal audit must be submitted and received within ten working days after receipt of the notice of violation in order to be considered timely and such written request must be submitted via hand-delivery or certified mail.

      
      

      14A-1.008 Appearances

      
      

      Those persons, firms or corporations who have been assessed a penalty for violations of Section 316.540, 316.545, or 316.3025,

      Florida Statutes, and have complied with the requirements of Rules 14A-1.004 and

      14A-1.007 either have paid the penalty or posted a Section 316.545, Florida Statutes, bond shall appear in person, through an authorized representative or by legal counsel. Each person shall be given ample time to explain the reasons for seeking relief. The Review Board, at its discretion, may inquire into any testimony presented at the meeting

      or written statements presented. Testimony also may be received from the agency that imposed the penalty.

      
      

2. Although Mr. Walker testified that he never received notice of rule- making to amend Chapter 14A-1, Florida Administrative Code, he did not present evidence that he requested notice. Nor did he argue that the amendments were otherwise invalid.

   
   

   Chapter 18, Motor Carrier Compliance Operations Manual

3. As stated in its first paragraph, Chapter 18, "Collection of Civil Penalties", within the Motor Carrier Compliance Operations Manual, the purpose of Chapter 18 is,

   
   

   to establish a uniform procedure for the collection of overweight penalties and other commercial vehicle penalties assessed pursuant to Florida Statutes and, Department Rules. (DOT Exhibit Number13)

   
   

4. Like the rules of DOT in 1995, the Chapter 18 procedures provided for immediate collection of a penalty, or posting a bond or impoundment of a vehicle at the time enforcement action is taken. Although agency personnel invoked Chapter 18 as part of their basis for seeking immediate payment by H. B. Walker, the provisions of the Chapter nowhere specifically mention penalties assessed as the result of terminal audits.

   
   

5. On April 15, 1996, the agency issued Enforcement Bulletin 18-001, to be inserted in Chapter 18 describing procedures for imposition and collection of civil penalties associated with terminal audits. Those procedures are the same as the procedures described in the rule amendments addressed in paragraphs 18 through 20, above.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to sections 120.535, and 120.56, Florida Statutes (1995) 1/

   .

   
   

7. Section 120.535, Florida Statutes (1995) requires that agency statements defined as a rule must be adopted by section 120.54 rule-making procedures as soon as feasible and practicable. Persons substantially affected by an agency statement may file a petition seeking an administrative determination that the agency statement violates this requirement.

   
   

8. Section 120.56, Florida Statutes (1995) provides that any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

   
   

9. H. B. Walker has challenged both existing rules and statements which he contends are rules. There is no dispute that Walker is "substantially affected" by the rules and statements at issue; those rules and statements were the basis for the assessment of a civil penalty and impoundment of a Walker vehicle.

   
   

10. Section 120.535, Florida Statutes (1995) is the exclusive mechanism for challenging an agency's failure to promulgate rules. Christo v. State Department of Banking and Finance, 649 So 2d 318 (Fla 1st DCA 1995). The threshold issue under section 120.535 is whether the un-promulgated statement is a "rule".

    
    

11. A "rule", as defined in section 120.52(16), is an agency statement of general applicability that implements, interprets, or prescribes law or policy.

    
    

    An agency statement is a rule if it purports in and of itself to create certain rights

    and adversely affect others, or serves by

    its own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law.

    
    

    Balsam v. Department of Health and Rehabilitative Services, 452 So 2d 976, 977-78

    (Fla 1st DCA 1984)

    
    

    The "Un-promulgated Rules"

    
    

12. The statements by Colonel McPherson and Captain Brown regarding authority to impound a vehicle for failure of a motor carrier to immediately pay a penalty imposed after a terminal audit plainly applied to H. B. Walker's case and affected his rights. However, the record fails to establish that these statements had general applicability or were any more than an ad hoc interpretation of agency policy that had never before been applied to circumstances similar to Walker's. Walker's was the first case, and possibly the only case to which the policy was applied, since during the pendency of Walker's proceeding the agency promulgated rules which specifically address the assessment of penalties for violations found in terminal audits.

    
    

13. Chapter 18 of the Motor Carrier Compliance Office Procedures Manual, by its stated purpose to create "a uniform procedure" (see paragraph 22, above) would meet the definition of a rule. Department of Transportation v. Blackhawk Quarry Company of Florida, Incorporated, 528 So 2d 447 (Fla 5th DCA 1988), review denied, 536 So 2d 243. But the procedures in Chapter 18 are no more than re-statement of procedures found in promulgated rules, which procedures (in the rules and in the manual) did not, until the 1996 amendments, specifically address the assessment of penalties after a terminal audit. As found above, the promulgated rules, as well as Chapter 18, have been amended to describe procedures for collecting those penalties. Chapter 18, as amended, adds nothing to those procedures and does not, therefore, meet the Balsam standard for a rule.

    
    

14. Assuming, however, that the statements and Chapter 18 would meet the definition of a rule, the agency is entitled to several defenses for its failure to formally adopt the statements and Chapter 18, pursuant to rule-making procedures mandated in section 120.54, Florida Statutes.

    
    

15. Rule-making is required by section 120.535(1)"...as soon as feasible and practicable." Rule-making is presumed feasible unless the agency proves that:

    
    

    1. The agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to address a statement by rule-making; or

    2. Related matters are not sufficiently resolved to enable the agency to address a statement by rule-making; or

    3. The agency is currently using the rule- making procedure expeditiously and in good faith to adopt rules which address the statement.

    Section 120.535(1)(a), Florida Statutes (1995).

    
    

16. At the time that the agency applied its statements and Chapter 18 to

    H. B. Walker, it had little experience with the assessment of penalties after a terminal audit. During the pendancy of Walker's case, the agency appropriately examined its policy, altered it, and promulgated the new policy in the form of the rule amendments which are cited in paragraphs 16 through 20, above.

    
    

17. The agency statements at issue and Chapter 18 do not violate section 120.535(1), Florida Statutes (1995).

    
    

    The Promulgated Rules

    
    

18. Existing rules may be determined invalid on the ground that the rules are an invalid exercise of delegated legislative authority. Section 120.56(1), Florida Statutes (1995). Walker contends that rules 14A-1.004, 14A-1.007, 14-

    87.002 and 14-87.011(1), Florida Administrative Code, exceed the agency's grant of rule-making authority and enlarge, modify or contravene the specific provisions of law implemented. See, definition of "invalid exercise of delegated legislative authority" at 120.52(8), Florida Statutes (1995).

    
    

19. Specifically, Walker argues that none of the laws cited as authority for the rules or cited as laws implemented for the rules require, or provide for, the posting of a bond or payment of a penalty prior to a motor carrier's seeking and obtaining Commercial Motor Vehicle Review Board review of a penalty imposed after a terminal audit 2/ .

    
    

20. It is immaterial whether Walker is correct. The rules at issue have been amended and no longer require pre-payment of the penalty or posting a bond prior to timely-requested review by the Commercial Motor Vehicle Review Board. For this reason, Walker's challenge to the promulgated rules is moot 3/ .

ORDER

Based upon the foregoing, the petition by H. B. Walker, Inc. in case number 95-4371RU is DISMISSED.

DONE AND ORDERED this 4th day of November, 1996, in Tallahassee, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996.

ENDNOTES

1/ Chapter 120 was substantially amended in 1996, effective October 1, 1996, to create substantive changes and to renumber certain sections. This case arose and was heard prior to the effective date of the changes. None of the changes would have affected the outcome here.

2/ Walker's characterization of the underlying statutes is correct. They do not specifically address immediate liability for a penalty after a terminal audit reveals violations. There is, however, as argued by the agency in its proposed final order, some indication of legislative intent that penalties for road-side violations be assessed immediately, with the right of the aggrieved person to have the penalty modified, cancelled or revoked by the Commercial Motor Vehicle Review Board. See sections 316.3025, Florida Statutes and 316.545, Florida Statutes. The agency, in its proposed order, describes the legislative history of these provisions, which history pre-dates the authority of the agency to conduct terminal audits.

3/ Walker might contend that the challenge to out-dated rules is not moot since his vehicle was impounded under the agency's application of those rules. There is some authority for the proposition that a challenge to an expired or superceded rule is still appropriate where the challenger has been the subject of enforcement actions pursuant to that rule. Witmer v. Department of Business and Professional Regulation, DOAH Case Number 93-6549RX (Final Order February 4, 1994), reversed on other grounds in Witmer v. Department of Business and Professional Regulation, 20 FLW D2382 (Fla 4th DCA October 25, 1995). Walker's circumstances are distinguished, however, from Mr. Witmer's as Walker's rule challenges relate to the procedure for collecting a penalty and not to substantive enforcement. The Administrative Law Judge has no jurisdiction to restore Walker's vehicle in this or the companion case number 95-4951, even if the judge had determined the rules were invalid or the alleged violations unfounded. It is appropriate to note, however, that upon the effective date of the rules' amendment, DOT no longer had the authority to hold Walker's vehicle pending payment of the penalty, assuming that authority did exist prior to amendment.

COPIES FURNISHED:

Thomas V. Infantino, Esquire INFANTINO AND BERMAN

180 South Knowles Avenue, Suite 7 Post Office Drawer 30

Winter Park, Florida 32790

Paul Sexton

Chief, Administrative Law

Attention: Diedre Grubbs, Mail Station 58 Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings, and a second copy accompanied by filing fees prescribed by law with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 95-004371RU

Orders for Case No: 95-004371RU