================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA OFFICE OF THE COMPTROLLER

IN RE REFUND REQUEST:

AERO MAYFLOWER TRANSIT CO., INC.

[DOAH Case No. 81-2272] ) ADMINISTRATIVE PROCEEDING NUMBER: 82-58-D0A

ALTERMAN TRANSPORT LINES, INC. DOAH Case No. 81-2285]

BOWMAN TRANSPORTATION, INC. [DOAH Case No. 81-2269]

BURGESS AND COOK, INC. [DOAH Case No. 81-2295]

CARL SUBLER TRUCKING, INC. [DOAH Case No. 81-2286]

CAROLINA FREIGHT CARRIERS [DOAH Case No. 81-2207]

COMMERCIAL CARRIERS, INC. [DOAH Case No. 81-2266]

CONSOLIDATED FREIGHTWAYS, INC. [DOAH Case No. 81-2288]

GATOR FREIGHTWAYS, INC.

[DOAH Case Nos. 81-2289 & 81-1298]

GEORGIA HIGHWAY EXPRESSWAY, INC. [DOAH Case No. 81-22990]

LEONARD BROS. TRUCKING CO., INC.

[DOAH Case No. not assigned]

MEAT DISPATCH, INC. [DOAH Case No. 81-2291]

MILLER TRANSPORTERS, INC. [DOAH Case No. 82-557]

MOTOR CONVOY, INC. [DOAH Case No. 81-2050]

OLLIE ARTHUR TRUCKING CO. [DOAH Case No. 81-2292]

PAN AMERICAN VAN LINES, INC. [DOAH Case No. 81-2700]

RYDER TRUCK LINES, INC. [DOAH Case No. 81-2295]

SUWANNEE TRANSFER, INC. [DOAH Case No. 81-2294]

UNITED PARCEL SERVICE, INC. [DOAH Case No. 81-2702]

WATKINS MOTOR LINES, INC. .

[DOAH Case No. not assigned]

NATIONAL TRAILER CONVOY, INC. [DOAH Case No. 81-2270]

FLORIDA ROCK HAULERS, INC. [DOAH Case No. 81-2267]

ALDRICH TRUCKING, INC. [DOAH Case No. 81-2263]

DIXIE AUTO TRANSPORT COMPANY [DOAH Case No. 81-2264]

HAYWARD TRUCKING, INC. [DOAH Case, No. 81-2701]

R. J. JEFFRIES TRUCKING CO., INC. [DOAH Case No. 81-2265]

TRANS-PHOS, INC.

[DOAH Case No. 81-2304]

B. J.McADAMS, INC. [DOAH Case No. 81-2301]

McKENZIE TANK LINES, INC. [DOAH Case No. 81-3037]

CHEMICAL TANK LINES, INC. [DOAH Case No. 81-2281]

FLORIDA GENERAL TRUCKING, INC. [DOAH Case No. 81-2282]

1. R. & R. TRUCKING CO. [DOAH Case No. 81-2283]

   
   

   SIGNAL DELIVERY SERVICE, INC. [DOAH Case No. 81-2296]

   REFRIGERATED TRANSPORT CO. [DOAH Case No. 81-2699]

   
   

   COURIER SERVICES INTERNATIONAL [DOAH Case No. 81-2268]

   
   

   POLAR TRANSPORT, INC. [DOAH Case No. 81-1890]

   
   

   SHELTON TRUCKING SERVICES, INC. [DOAH Case No. 81-2284]

   
   

   LOUIS J. KENNEDY TRUCKING CO. [DOAH Case No. 81-2704]

   
   

   AMERICAN SIGHTSEEING TOURS, INC. [DOAH Case No. 81-2277]

   
   

   FLORIDA LIMOUSINE SERVICES, INC. d/b/a FLORIDA TOUR & LIMO

   [DOAH Case No. 81-2278]

   
   

   MORGAN DRIVE AWAY, INC. [DOAH Case No. 81-2279]

   
   

   TRAILWAYS, INC.

   [DOAH Case No. 81-2280]

   
   

   Petitioners.

   
   

   vs.

   
   

   STATE OF FLORIDA, OFFICE OF THE COMPTROLLER,

   
   

   Respondent.

   /

   
   

   FINDINGS OF FACT CONCLUSIONS OF LAW AND FINAL ORDER

   
   

   The undersigned, GERALD LEWIS, as the duly elected qualified and acting Comptroller of the State of Florida upon due consideration of the subject matter hereof and being fully advised in the premises, does, pursuant to the authority vested in him by Section 215.26, Florida Statutes, herewith issue the following Findings of Fact, Conclusions of Law, and Finale Order.

   
   

   FINDINGS OF FACT

   
   

   1. Each of the above-named Petitioners have previously filed with the Office of the Comptroller requests for refund of monies paid to the State for cab card fees, identification stamps and road taxes pursuant to the provisions of Chapter 32, Florida Statutes. Thereafter, this Office issued to each Petitioner its Notice of Intention to Deny the Request ford Refund and each Petitioner filed its Petition; requesting a formal hearing pursuant to the provisions of Chapter 120, Florida Statutes, concerning such proposed denial.

      This Office granted such Petitions and same were forwarded to the Division of Administrative Hearings for formal proceedings. Charles C. Adams was appointed as the Hearing Officer and by stipulation of the parties all of the Requests for Refund were consolidated in one proceeding. On May 10, 1982, Mr. Adams issued his Recommended Order which included Findings of Fact by Stipulation of the Parties, Conclusions of Law and a Recommended Order. Copies of such Recommended Order were furnished to all of the Petitioners.

      
      

   2. Thereafter, this Office represented by John Browdy, Esquire, Assistant Attorney General, filed a Motion for Clarification which was denied by the Hearing Officer by Order dated June 7, 1982. Mr. Browdy then filed Exceptions to the Recommended Order. Both the Motion for Clarification and the Exceptions are based upon an alleged failure of the Hearing Officer to set forth in his Recommended Order any instruction's as to the fund or appropriation to which refunds, if granted, should be charged.

      
      

   3. In paragraph five of the Conclusions of Law in the Recommended Order, Hearing Officer Adams entered a conclusion to the effect that the annual assessment of cab card fees and identification stamps collected pursuant to Rule 25-5.14, Florida Administrative Code, was improper as that Rule had been held invalid by Order of the Division of Administrative Hearings in DOAH Case No. 82- 131R captioned Aero Mayflower Transit Co., Inc., et al. v. State of Florida, Public Service Commission and the Comptroller of Florida. Hearing Officer Adams notes that this Order of the DOAH has been appealed to the First District Court of Appeal of Florida. That Court is now considering, in Case No. AL-341, the accuracy of the DOAH Order and may either affirm, reverse; or remand such Order.

      
      

   4. With the addition of the Findings of Fact set forth above, the Findings of Fact set forth in the Recommended Order of Hearing Officer Adams issued under date of May 10, 1982, are adopted as the Findings of Fact determined by this Office and the same are incorporated and made a part hereof as though fully set forth at length.

      
      

      CONCLUSIONS OF LAW

      
      

   5. With the exception of paragraph five of the Conclusions of Law determined by Hearing Officer Adams in his Recommended Order of May 10, 1982, all such Conclusions of Law are adopted by this Office and incorporated as a part hereof as though set forth at length.

      
      

   6. Paragraph five of the Conclusions of Law as determined by Hearing Officer Adams in his Recommended Order is also adopted as a Conclusion of Law by this Office and incorporated herein subject, however, to reconsideration and modification of this Order at such time in the future as the Court has ruled on the appeal filed and now pending in the First District Court of Appeal as set forth in paragraph three above and such ruling has become final.

      
      

   7. Concerning the exceptions filed, it is the conclusion of this Office that under the provisions of Section 215.26(1)(a), Florida Statutes, any refunds made pursuant to this Order must be charged against the Public Service Commission Regulatory Trust Fund as this fund, by stipulation of the parties, received and was credited with such monies initially. No other appropriation is available to this Office for the purpose of such refunds. No case law has been cited to this Office and this Office has found none which modifies or amends the specific language of this statute.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby Ordered as follows:

1. Petitioners applications for refunds are granted as to:

   
   

   1. Seven-twelfths (7/12) of 35 percent of the road taxes paid by the Petitioners

      for the year February 1, 1980 through January 31, 1981;

      
      

   2. Seven-twelfths (7/12) of 35 percent of 50 percent of the sums paid for emergency permit

      cards or trip-lease permits for the year February 1, 1980 through January

      31, 1981;

      
      

   3. All charges related to cab cards, identification stamps, road tax decals and emergency or trip-lease permit cards issued subsequent to June 30, 1980, or issued prior to July 1, 1980, to be used on or after July 1, 1980. It shall be presumed that any such items issued prior to June 15, 1080, were to be used prior to July 1, 1980.

      
      

2. Petitioners applications for refund of all recurring or second time or renewal fees paid for identifying devices known as cab cards and identification stamps related to the year February 1, 1980 through January 31, 1981, are granted provided the Court ultimately upholds the Order of the Division of Administrative Hearings as set forth in paragraph three above, otherwise, this Order is subject to correction and modification to conform to the final disposition of such appeal as made by the Court and no refund of any such sums shall be made until that appeal has been fully and finally determined.

   
   

3. All other refund claims made by the Petitioners are denied.

   
   

4. Should any dispute arise concerning the amount of any refund due, such amount shall be determined as set forth in the Recommended Order of the Hearing Officer.

   
   

5. All refunds made pursuant to this Order shall bed charged against the Public Service Commission Regulatory Trust Fund.

DONE AND ORDERED at Tallahassee, Florida, this 6th day of August, 1982.

GERALD LEWIS

Comptroller State of Florida

COPIES FURNISHED TO:

John Radey, Esquire Roger A. Kirschenbaum, Esquire Holland & Knight 5th Floor, Lenox Tower South Post Office Drawer 810 3900 Peachtree Road Tallahassee, Florida 32302 Atlanta, Georgia 38326

John Browdy, III, Esquire Alton C. Gardner Assistant Attorney General Vice-President-Traffic Department of Legal Affairs Polar Transport

The Capitol 176 King Street Tallahassee, Florida 32301 Hanover, Massachusetts 02339

Nancy Henry David Smith, Esquire Legislation Supervisor Public Service Commission National Trailer Convoy, Inc. Legal Department

705 South Elgin Fletcher Building

P. 0. Box 3329 101 Gaines Street

Tulsa, -Oklahoma 74101 Tallahassee, Florida 32301

Sol H. Proctor, Esquire William D. Moore, Esquire 1101 Blackstone Building 604 Exchange Building

Jacksonville, Florida 32202 Tallahassee, Florida 32302

Craig Massey, Esquire Felix A. Johnston, Jr., Esq.

215 East Lima Street 1030 E. Lafayette Street

Post Office Drawer 1109 Suite 112

Lakeland, Florida 33802 Tallahassee, Florida 32301

Robert B. Nadeau, Jr., Esquire Martin Sack, Jr., Esquire CNA Building, 17th Floor 203 Marine National Bank

P. 0. Box 231 311 West Duval Street Orlando, Florida 32802 Jacksonville, Florida 32202

Ansley Watson, Jr., Esquire Thomas F. Panebianco, Esq. P. 0. Box 1531 P. 0. .Box 1200

Tampa, Florida 33601 Tallahassee, Florida 32302

Jo Ellen Faraham, Esquire Martin S. Freeman, Esquire

P. 0. Box 265 1020 E. Lafayette Street

Tampa, Florida 33601 Tallahassee, Florida 32301

David A. London, Vice President Charles E. Natkins, Esquire of Finance Leaseway Transportation Corp

Nu-Car Carriers, Inc. Corporate Headquarters

950 Haverford Road 3700 Park East Drive Bryn Mawr, Penrsylvania 19010 Cleveland, Ohio 44122

Norman J. Bolinger, Esquire Hugo C. Edberg, Esquire 3100 University Boulevard Hill, Hill & Dickenson

Suite 225 3020 First Florida Tower

Jacksonville, Florida 32216 Tampa, Florida 33602

Charles C. Adams, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

George Haynie

Thomas Clemons, Director Chief, Bureau of Auditing Division of Accounting and Office of the Comptroller Auditing The Capitol, Suite 1101

Office of the Comptroller Tallahassee, Florida 32301 The Capitol, Suite 1201

Tallahassee, Florida 32301 Walter W. Wood, Esquire

Assistant General Counsel

A. George Igler, Esquire Office of the Comptroller Assistant General Counsel The Capitol, Suite 1302 Office of the Comptroller Tallahassee, Florida 32301 The Capitol, Suite 1302

Tallahassee, Florida 32301

Docket for Case No: 81-001298

Orders for Case No: 81-001298