STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-1481

)

JORGE HERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on August 30, 1983, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael J. Alderman, Esquire

Assistant General Counsel Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32301

For Respondent: Jorge Hernandez, pro se

1234 13th Street

Miami Beach, Florida 33139 STATEMENT OF THE ISSUE

The issue for determination at the final hearing was whether the Respondent Jorge Hernandez' commercial driving instructor's certificate should be revoked, suspended, or otherwise disciplined for allegedly not being current and being fraudulently altered to show a later expiration date.

PRELIMINARY STATEMENT

At the final hearing, the Petitioner Department presented the testimony of Maritza Contaris, Elizabeth Lopez, Mary Lou Karner, Gail Shelow, and Don Keirn, all employees of the Petitioner Department. Additionally, Petitioner's Exhibit No. 1 was offered and admitted into evidence without objection. The Respondent Jorge Hernandez testified on his own behalf.

The Petitioner Department submitted a Proposed Recommended Order containing findings of fact. When these findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not

consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. The Respondent Hernandez is a certified commercial driving school instructor employed by Easy Method Auto Driving School.

   
   

2. The Respondent is the owner of a 1980 AMC motor vehicle, serial number AOC435C103790, which he uses to instruct students in the operation of a motor vehicle, in order to obtain a drivers license.

   
   

3. The Respondent was issued commercial driving school registration number 1888-2, Petitioner's Exhibit No. 1, for the aforesaid vehicle which expired on March 1, 1983.

   
   

4. Due to the Respondent's failure to insure that necessary insurance documentation was forwarded to the Petitioner Department in a timely fashion, the Respondent did not receive a new vehicle registration card until March 8, 1983.

   
   

5. Between the time that his old commercial driving school vehicle registration expired and the receipt of the new vehicle registration on March 8, 1983, the Respondent used his vehicle to teach driving to students.

   
   

6. On March 4, 1983, Driver License Examiner Maritza Contaris gave a driving test to one of Respondent's students in Respondent's AMC vehicle. Upon examining the commercial driving school vehicle registration, Petitioner's Exhibit No. 1, displayed in the car, she noticed that the expiration date appeared to have been altered. She brought this to the attention of another Driver License Examiner, Elizabeth Lopez.

   
   

7. When Elizabeth Lopez examined the registration, she observed that the date appeared to have been altered and in turn, brought this to the attention of her supervisor, Mary Lou Karner.

   
   

8. Mary Lou Karner requested the Respondent to step into her office where she confronted him with the apparently altered registration. Gail Shelow, another Driver License Examiner, was a witness to this conversation. The Respondent admitted that he knew the expiration date of the registration had been altered and stated that this had occurred because he had not yet received a new certificate from the Petitioner.

   
   

9. An examination of Petitioner's Exhibit No. 1 clearly reveals that the registration has been altered by changing the expiration date from March 1, 1983 to March 11, 1983, by adding a "l".

   
   

10. The Respondent altered his commercial driving school registration card which was required to be kept in the corner of the windshield of the Respondent's vehicle in order to continue using said vehicle pending receipt of a new vehicle registration.

    
    

11. The Respondent's assertion that the registration must have been altered by driving school personnel, is not credible in light of the Respondent's admission to Karner and Shelow when confronted with the alteration,

    that he knew the registration had been altered and that this had been done because a new registration had not yet arrived.

    
    

12. The alternation by the Respondent of the registration card, because of a lack of adequate insurance coverage, demonstrates a lack of good character on the part of the Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

14. Licensure of commercial driving schools and instructors is governed by Chapter 488, Florida Statutes, and Chapter 15A-2, Florida Administrative Code. Section 15A-2.11, Florida Administrative Code, provides in pertinent part that:

    
    

    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 requirement essential to the purpose of Chapter 488, F.S. The following acts or conditions shall be considered violations of the safety requirements essential to effect the purpose of Chapter 488, F.S.:

       1. The violation of any provision of Chapter 488, F.S., or of any of the rules and regulations of the Department.

          
          

15. By using his vehicle for commercial driving instruction without having a current commercial driving school vehicle registration, the Respondent violated Section 488.05, Florida Statutes, which prohibits a motor vehicle owned or controlled by a driving school from being used for the purpose of giving driving instructions until the licensee has obtained from the Department of Highway Safety and Motor Vehicles a motor vehicle identification certificate. Also see Rule 15A-2.07(1), Florida Administrative Code.

    
    

16. Moreover, by altering the commercial driving school vehicle registration expiration date and displaying the altered registration in his vehicle, the Respondent demonstrated a lack of good moral character which is required of a driving instructor pursuant to Rule 15A-2.09(2)(a), Florida Administrative Code.

    
    

17. Although the actions of the Respondent did not result in any injury to a student, the circumstances surrounding this incident clearly demonstrated that the alteration was necessitated by the Respondent's failure to provide insurance documentation to the Department. This factor makes the action of the Respondent in altering the registration card especially significant and shows that the Respondent should not be licensed as a commercial driving instructor.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Department enter a Final Order revoking the commercial driving instructor's certificate of the Respondent Jorge Hernandez.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of September, 1983.

COPIES FURNISHED:

Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32301

Jorge Hernandez 1234-13th Street

Miami Beach, Florida 33139

Paul Rowell, Esquire General Counsel

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32301

Robert A. Butterworth Executive Director Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32301

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1983.

Docket for Case No: 83-001481

Orders for Case No: 83-001481