STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID YOUNER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0161

) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 20, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: David Youner, pro se

Post Office Box 450580 Sunrise, Florida 33345

For Respondent: Michael J. Alderman, Esquire

Assistant General Counsel Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A432 Tallahassee, Florida 23299-0504

STATEMENT OF THE ISSUES

Whether the registration fees for two automobiles leased by Petitioner should be based on the vehicles being classified as "automobiles for private use" as contended by Petitioner or whether the registration should be based on the vehicles being classified as "motor vehicles for hire" as contended by Respondent.

PRELIMINARY STATEMENT

Petitioner challenged the assessment of the registration fee for two automobiles he leases for use in his business. Petitioner requested a formal hearing, contending that he was overcharged for the registration fee because his automobiles were erroneously classified as "motor vehicles for hire" when the registration should have been based on a classification of "automobiles for private use."

Petitioner testified on his own behalf, but offered no exhibits.

Respondent offered twenty exhibits, each of which was accepted into evidence without objection. Respondent did not call any witnesses.

A transcript of the proceedings has been filed. The proposed findings of fact submitted by Respondent are adopted in material part by the Recommended Order. Petitioner did not file a post-hearing submittal.

FINDINGS OF FACT

1. Petitioner is in the insurance business. In connection with that business, he leases two motor vehicles from World Omni Leasing Company.

   
   

2. Petitioner pays to World Omni Leasing a monthly fee for the use of the two vehicles.

   
   

3. Petitioner and his wife uses these two vehicles for business and personal purposes.

   
   

4. Petitioner and his wife are the sole operators of these two vehicles.

   
   

5. The registration fee for each automobile was based on the automobile being classified as a "for-hire vehicle" as that term is defined by Section 320.01(15)(a), Florida Statutes. Petitioner contends that the registration for each vehicle should be based on each vehicle being classified as a "private use" vehicle as defined by Section 320.01(14), Florida Statutes. The registration fee for each automobile under the "for-hire" classification was higher than the registration fee would have been under the "private use" classification.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. The Respondent is responsible for the administration of the provisions of Chapter 320, Florida Statutes. See, Section 320.011, Florida Statutes.

   
   

8. Section 320.01, Florida Statutes, provides the following definitions pertinent to this proceeding:

   
   

   (3) "Owner" means any person, firm, corporation, or association controlling any motor vehicle or mobile home by right of purchase, gift, lease, or otherwise.

   * * *

   (14) "Private use" means the use of any vehicle which is not properly classified as a for-hire vehicle.

   (15)(a) "For-hire vehicle" means any motor vehicle . . . let or rented to another for consideration . . .

   
   

9. Section 320.02(1), Florida Statutes, provides, in pertinent part, as follows:

   
   

   1. Except as otherwise provided in this chapter, every owner or person in charge of a motor vehicle which is operated or driven in this state shall register the vehicle in

      this state. The owner or person in charge shall apply to the department or to its authorized agent for registration of each such vehicle on a form prescribed by the department. . . .

      
      

10. Section 320.08, Florida Statutes, provides, in pertinent part, as follows:

    
    

    . . . [T]here are hereby levied and imposed annual license taxes for the operation of motor vehicles ... which shall be paid to and collected by the department or its agent upon the registration or renewal of registration of the following:

    * * *

    (2) AUTOMOBILES FOR PRIVATE USE . . .

    * * *

    (6) MOTOR VEHICLES FOR HIRE . . .

    
    

11. Respondent interprets the statutory definition of a "for-hire vehicle" to include a vehicle that has been leased to an individual, regardless of the use the individual thereafter makes of the vehicle. An agency's interpretation of its rules and governing statutes will not be overturned unless the interpretation is clearly erroneous. An agency's interpretation of its own rules and regulations will not be overturned even if such interpretation is not the sole possible interpretation, the most logical interpretation, or the most desirable interpretation. Health Quest Corporation, et al. v. Department of Health and Rehabilitative Services and Arbor Health Care Co., et al., 11 FALR 5427 (1989), ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla. 1983).

    
    

12. The definition of a "for-hire vehicle" contained in Section 320.01(15)(a), Florida Statutes, includes any automobile "let or rented to another for consideration". It is undisputed that the two automobiles involved in this proceeding have been "let or rented" to Petitioner by World Omni Leasing Company for consideration. It is the status of these automobiles as having been leased to Petitioner by World Omni Leasing that places them in the classification of "for-hire" vehicles. The uses made of these two vehicles by Petitioner and his wife is not dispositive of whether the vehicles should be registered as "for-hire" or "private use" vehicles.

    
    

13. Respondent's determination that the registration fee for each of these automobiles should be based on the "for-hire" classification is bottomed on a reasonable interpretation of the statutory definition of the term "for-hire vehicle". Consequently, Respondent's determination should not be overturned.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that adopts the findings of

fact and conclusions of law contained herein and which sustains the registration

fees that have been charged for the two subject vehicles.

DONE AND ENTERED this 6th day of September, 1994, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1994.

COPIES FURNISHED:

Mr. David Youner

Post Office Box 450580 Sunrise, Florida 33345

Michael J. Alderman, Esquire Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A432 Tallahassee, Florida 32399-0504

Charles J. Brantley, Director Division of Motor Vehicles

Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500

Enoch Jon Whitney, General Counsel Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-000161

Orders for Case No: 94-000161