STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREYHOUND LINES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 82-431

) STATE OF FLORIDA, OFFICE OF ) THE COMPTROLLER, )

)

Respondent. )

)

RECOMMENDED ORDER INTRODUCTION

In lieu of a formal Subsection 120.57(1), Florida Statutes, hearing, the parties in this case have entered into a written stipulation of facts which serves as the basis for the Recommended Order. The parties in the person of their counsel have offered briefs and argument. This material has been considered prior to the entry of this Recommended Order. To the extent that it is convincing, it has been utilized. To the extent that it is inconsistent with the Recommended Order, it has been rejected as contrary to the conclusions of law found or recommended disposition made.

APPEARANCES

For Petitioner: John H. Wilbur, Esquire

1700 Barnett Bank Bldg. Jacksonville, Florida 32202

For Respondent: Walter W. Wood, Esquire

Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301

ISSUES

The issues presented concern the request by Petitioner for a refund of $700 paid to the Florida Public Service Commission as a filing fee related to an application for a rate increase of its passenger fares.

FINDINGS OF FACT

1. The facts presented are based upon a stipulation offered by the parties. Those facts were accepted for purposes of this Recommended Order by the interlocutory Order of November 21, 1983. In keeping with that action and pursuant to the parties' stipulation of facts, the following facts are found: (See Stipulation of Facts and all exhibits attached to this Recommended Order.)

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes; Chapter 323, Florida Statutes; and Section 215.26, Florida Statutes.

   
   

3. Petitioner has made a request for refund of a fee payment given to the Florida Public Service Commission for purposes of applying for a rate increase for passenger fares. This payment was made pursuant to provisions of Chapter 323, Florida Statutes. The request for refund related to the application fee payment is timely.

   
   

4. Pursuant to Subsection 323.011(6)(c), Florida Statutes, Greyhound paid the application fee for a rate increase related to passenger fares. This was done prior to the repeal of the regulatory statute, the payment being made on February 16, 1980, and the repeal occurring July 1, 1980. Activity related to the application process included docketing and the establishment of a hearing date on the question of the propriety of the rate increase, which hearing date was subsequently continued upon the request of Petitioner's counsel. Petitioner now asks for a refund premised upon the repeal of the regulatory statute effective July 1, 1980. Chapter 323, Florida Statutes, is silent on the question of refunds of fees paid in pursuit of rate fare increases. Therefore, the determination of any entitlement to the refund must be in keeping with the refund process generally described for claims made against the State of Florida, as found in Subsection 215.26(1), Florida Statutes. 1/ In keeping with the underlying theory of recovery of a refund, Petitioner must show that it has made an overpayment of the application fee, that no application fee was due, or that the payment of the fee was made in error. The facts and law do not support the theory of recovery based upon an overpayment or error. Consequently, any theory of recovery must be premised upon the idea that the fee was not due. That theory is not convincing for reasons discussed below.

5, Having decided to increase the passenger fares at a time when Chapter 323, Florida Statutes, served as a regulatory statute for such activity by the motor carriers, Petitioner could not have avoided the filing of the application to increase the fares. The application fee was not in the way of a revenue producing measure such as a tax, but was offered to defray the expense of the processing of the application. For the regulatory agency to earn the fee, it was necessary to perform a service to the applicant prior to the repeal of the regulatory statute, which it did. In deciding the question of the entitlement to maintain the fee paid based upon performance in processing, the Comptroller must do so on the basis of a policy decision related to the present case, there being no specific rule designed to address the present contingency. Respondent has made a similar policy choice in addressing the question of refund in the case of Arrow Messenger Service, Inc. v. State of Florida, Office of the Comptroller, DOAH Case No. 80-1936. In that opinion, by Final Order, levels of performance necessary for the Florida Public Service Commission to earn the application fee were identified. The performance levels addressed in Arrow Messenger were sufficiently similar to that of the present case to use the rationale expressed in that prior decision. That opinion is particularly convincing in that refund was denied in the instance wherein the matter had been established for final hearing and other related steps of processing had occurred, and this is a pattern found in the present case. Using the development of the policy choice in Arrow Messenger for the present case and being satisfied of the efficacy of such policy choice, Petitioner is not

entitled to a refund of the $700 application fee for rate increase, the Florida Public Service Commission having earned that fee.

Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED:

That a final order be entered which denies the Petitioner's claim for refund of the $700 application fee.

DONE AND ENTERED this 3rd day of January, 1984, in Tallahassee, Florida.

CHARLES C. ADAMS

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 3rd day of January, 1984.

ENDNOTE

1/ (1) The Comptroller of the state may refund to the person who paid same, or his heirs, personal representatives or assigns, any moneys paid into the State Treasury which constitute: (a) An overpayment of any tax, license or account due; (b) A payment where no tax, license or account is due; and (c) Any payment made into the State Treasury in error; and if any such payment has been credited to an appropriation, such appropriation shall at the time of making any such refund, be charged therewith. There are appropriated from the proper respective funds from time to time such sums as may be necessary for such refunds.

COPIES FURNISHED:

John H. Wilbur, Esquire 1700 Barnett Bank Bldg.

Jacksonville, Florida 32202

Walter W. Wood, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301

The Honorable Gerald Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-000431

Orders for Case No: 82-000431