STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4457

)

AVENEL CESAIRE, individually, ) and d/b/a CESAIRE'S DRIVING ) SCHOOL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above styled case on April 23, 1985, at Miami, Florida.

APPEARANCES

For Petitioner: Suzanne H. Printy, Esquire

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32301

For Respondent: Eric William Hendon, Esquire

8011 Northwest 22nd Avenue Miami, Florida 33147

PRELIMINARY STATEMENT

These proceedings arose as a result of an Order of Summary Suspension, Notice and Administrative Complaint issued by Petitioner, Department of Highway Safety and Motor Vehicles (Department), suspending Respondent's commercial driving school license, commercial driving school instructor's certificate and commercial driving school vehicle identification certificates. The Department charged that Respondent assisted person(s) in obtaining a driver's license by fraudulent means, failed to be of good moral character, and failed to have a valid chauffeur's license issued by the State of Florida. Respondent timely requested a hearing pursuant to Section 120.57, Florida Statutes.

At final hearing the Department called Willie A. Kelly, Sharon Marbury, and Mary Louise Smith, as witnesses. The Department offered Exhibits 1-4, and they were received into evidence. Respondent, Avenel Cesaire, testified on his own behalf. Respondent offered no exhibits.

The Department has submitted proposed findings of fact and conclusions of law, and they have been reviewed and considered. No proposed findings of fact

and conclusions of law have been submitted on behalf of Respondent. To the extent any proposed findings have not been adopted in this Recommended Order, they have been rejected as being subordinate, cumulative, immaterial, or unnecessary, or as being contrary to the facts as found in this Recommended Order.

FINDINGS OF FACT

1. Respondent, Avenel Cesaire, holds commercial driving school instructor's certificate number 6027. Respondent, Avenel Cesaire d/b/a Cesaire's Driving School, holds commercial driving school license 2256. Respondent's chauffeur license number C260-000-53-363-459 is currently under suspension. Each license was issued by the Department.

   
   

2. At all times material hereto, Respondent was employed as a driving instructor and engaged in the business of instructing persons in the safe operation of motor vehicles so they might be licensed by the State of Florida.

   
   

3. During October and November 1984, former driver license examiner Mary Louise Smith (Smith), at the insistence and request of Respondent, issued driver licenses to Respondent's students without them having passed the required written or oral examination.

   
   

4. Ms. Smith and Respondent were intimate. Ms. Smith first met Respondent at her place of employment: the Department's driver license examination station at 3095 Northwest 79th Street, Miami, Florida (the station). The parties began dating in June 1984 and continued to date until late November 1984, when she was discharged from her employment. During the course of their relationship, Respondent gave Ms. Smith $50-100, as frequently as twice a week.

   
   

5. Prior to his students reporting to the station for testing, Respondent provided Ms. Smith with the names, and identification, of those students who needed "assistance." Ms. Smith issued or caused to be issued, driver licenses to such students without examination or, if examined, without regard to their failure to pass the examination.

   
   

6. By aiding or assisting persons in obtaining driver's licenses without having first demonstrated their knowledge of the skills mandated by Section 322.12, Florida Statutes, and Rule 15A-1.12, Florida Administrative Code, Respondent caused to be licensed persons not deemed competent to operate motor vehicles upon the roads of the State of Florida. Such acts constituted a clear and serious danger to the public health, safety and welfare.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Rule 15A-2.11 provides:

   
   

   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 requirements es- sential to the purpose of Chapter 488, Florida Statutes. The following acts

      or conditions shall be considered viola- tions of the safety requirements essential to effect the purpose of Chapter 488, Florida Statutes:

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

         ***

         (j) Aiding or assisting a person in obtaining a driver's license by fraudulent procedures.

         
         

9. The Department charges Respondent violated Rule 15A-2.11(a) Florida Administrative Code, by his failure to have a valid chauffeur's license issued by the State of Florida. Rule 15A-2.09, Florida Administrative Code, provides in pertinent part:

   
   

   (1)(a) No person shall perform any instructional duties for any school un- less such person shall meet the quali- fications for instructors as herein pro- vided....

   ***

   (2) Instructor qualifications.

   ***

   1. Every instructor shall have a valid chauffeur's license issued

      by the State of Florida before making application for an instructor's certificate.

   2. Every instructor must main- tain during any consecutive three year period, a driving record which does not include more than three (3) chargeable accidents or violations as defined in Chapter 316, Florida

   Statutes. Any violation resulting in suspension or revocation of the driving privilege will automatically

   cause the suspension of the instructor's certificate.

   
   

10. The Department asserts that, since Respondent's chauffeur's license is currently under suspension, Rule 15A-2.09(2)(c), Florida Administrative Code, mandates the suspension of Respondent's instructor's certificate. The Department failed to offer any evidence concerning its interpretation of Rule 15A-2.09(b) and (c) Florida Administrative Code. Rule 15A-2.09(2)(c), Florida Administrative Code, facially authorizes the automatic suspension of an instructor's certificate for violations of Chapter 316, Florida Statutes, which result in suspension or revocation of the driving privilege. No violations of Chapter 316, Florida Statutes, were proven to be the cause of Respondent's chauffeur's license suspension. Accordingly, the Department failed to establish a violation of Rule 15A-2.11(1)(a), Florida Administrative Code.

    
    

11. The Department further charges Respondent violated Rule 15A- 2.11(1)(j), Florida Administrative Code, by "aiding or assisting a person in obtaining a driver's license by fraudulent procedures." Pertinent to this

    charge are Section 322.12, Florida Statutes, and Rules 15A-1.12, 15A-1.25 and 15A-1.16, Florida Administrative Code, which mandate that an applicant for a driver's license must pass an oral or written examination demonstrating his familiarity with road rules and road signs, prior to licensure.

    
    

12. The evidence establishes that Respondent aided or assisted persons in obtaining driver's licenses by fraudulent procedures. At his special insistence and request former driver license examiner Mary Louise Smith issued driver licenses to Respondent's students without requiring they take the required examination or without regard to the fact they had failed the required examination.

RECOMMENDATION

Based on 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 permanently revoking Respondent's commercial driving school license number 2256 and commercial driving instructor's certificate card number 6027.

DONE AND RECOMMENDED this 9th day of May, 1985 in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 9th day of May, 1985.

COPIES FURNISHED:

Suzanne H. Printy, Esquire Department of Highway Safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32301

Eric William Hendon, Esquire 8011 Northwest 22nd Avenue Miami, Florida 33147

Leonard R. Mellon, Executive Director Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32301

Docket for Case No: 84-004457

Orders for Case No: 84-004457