STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEISURE TYME RV AND KARL A. NESSAMAR,

Petitioners,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

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) Case No. 01-2829

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RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, Administrative Law Judge of the Division of Administrative Hearings, on September 26, 2001, in Pensacola, Florida. The appearances were as follows:

APPEARANCES

For Petitioners: Julius F. Parker, III, Esquire

Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.

215 South Monroe Street, Suite 200 Post Office Box 10095 Tallahassee, Florida 32301

For Respondent: Scott A. Matthews, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether a recreational vehicle with a gross vehicle weight in

excess of 10,000 pounds meets the definition of "commercial motor vehicle" under relevant Florida law when driven by an employee of a licensed recreational vehicle dealer, rather than by the ultimate consumer.

PRELIMINARY STATEMENT

This cause arose upon the filing of a Petition on

February 6, 2001, by the above-named Petitioners to contest the issuance of a "driver vehicle inspection report" (violation citation) issued to the Petitioners by an officer of the Respondent, Department of Transportation (Department)(Agency). Sometime after July 6, 2001, the dispute was referred to the Division of Administrative Hearings and ultimately to the undersigned.

The matter came on for formal hearing on September 26, 2001. The Respondent called one witness at the hearing, Officer Bryant Gay, employed by the Office of Motor Carrier Compliance of the Department. The Petitioners called one witness, Karl A. Nessamar, a salesman for Leisure Tyme, Inc. The undersigned also took official recognition of Chapters 207, 316, 320 and 322, Florida Statutes (2000), and 49 C.F.R., parts 383, 390,

391, 392 and 395.

Upon conclusion of the hearing the parties elected to obtain a transcript of the proceedings and to avail themselves of the right to submit Proposed Recommended Orders. Those

Proposed Recommended Orders have been considered by the undersigned in the rendition of this Recommended Order.

FINDINGS OF FACT

1. On January 22, 2001, the Department of Transportation (Department) issued a driver vehicle inspection report (No. FL6050069 - Citation Violation) to Karl A. Nessamar. At the time the report was issued Mr. Nessamar was driving a private motor coach owned by Leisure Tyme RV, Inc. (Leisure Tyme), on a state road. A private motor coach is a vehicle which does not exceed the length, width and height limitations of Section 316.515(9), Florida Statutes, and is built on a self-propelled, bus-type chassis having no fewer than three load-bearing axles and being primarily designed to provide temporary living quarters for recreational, camping or travel use. See Section 320.01(b)(5), Florida Statutes. Leisure Tyme is a recreational vehicle dealer as defined in Section 320.822(i), Florida Statutes. The recreational vehicle Mr. Nessamar was operating did not have a U.S. Department of Transportation number on display.

2. When Mr. Nessamar was issued the inspection report he did not possess a Class B driver's license; had no driver's record of duty status (log book); and had no medical certificate in his possession. Further, Mr. Nessamar was operating the

   vehicle in the course of his employment for Leisure Tyme at the time the inspection report was issued.

3. The gross vehicle weight rating of the subject recreational vehicle was 33,700 pounds. When the inspection report was issued, Mr. Nessamar was an employee of Leisure Tyme and was driving the vehicle from Tampa, Florida to Mary Esther, Florida. It was being returned to Mary Esther after having been displayed at the Florida RV "Super Show." This recreational vehicle was not carrying any cargo, passengers or hazardous materials at the time it was driven by Mr. Nessamar and when the citation or inspection report was issued. Because of the issuance of the vehicle inspection report the vehicle and Leisure Tyme were placed "out-of-service," which means that none of the vehicles in its ownership or operation can be driven until those vehicles and drivers meet all of the requirements of Title 49 Code of Federal Regulations, Parts 390 through 395 and Chapter 322, Florida Statutes.

4. The Department contends that whenever a recreational vehicle with a gross vehicle weight rating (GVW) exceeds 10,000, pounds and is driven by anyone other than the ultimate consumer or owner of that vehicle, it becomes a "commercial motor vehicle." It defines a commercial motor vehicle as any self- propelled or towed vehicle used on the public highways in commerce to transport passengers or cargo if such vehicle has a

   GVW of 10,000 pounds or more; is designed to transport more than

   
   

   15 passengers including the driver; or is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act, as amended (49 USC subsections 1801 et. seq.). See Section 316.003(66), Florida Statutes (2000).

5. There is no question, however, that the vehicle at issue meets the definition of a "private motor coach" because it has three load-bearing axles, a self-propelled bus type chassis, is primarily designed to provide temporary living quarters for recreational camping and travel use and does not exceed the length, width and height limitations provided in Section 316.515(9), Florida Statutes.

6. If indeed the vehicle in question is deemed to be a commercial vehicle, the driver, vehicle and owner become subject to many restrictions and regulations that do not apply to non- commercial motor vehicles. This is because the Legislature has adopted many of the federal regulations pertaining to commercial motor vehicles in Section 316.302(1)(b), Florida Statutes, specifically, 49 C.F.R. Parts 382, 385 and 390 through 397, with the exception of 49 C.F.R. Section 390.5. Thus, the pivotal question to determine concerning whether the cited violation is correct, is whether the vehicle in question is a commercial

   motor vehicle and, as related thereto, whether it is a recreational vehicle.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

8. Section 322.53, Florida Statutes (2000), states in pertinent part:

   1. Except as provided in subsection (2), every person who drives a commercial motor vehicle in this state is required to possess a valid commercial driver's license issued in accordance with the requirements of this chapter.

      
      

   2. The following persons are exempt from this requirement to obtain a commercial driver's license:

      
      

      1. Drivers of authorized emergency vehicles.

      2. Military personnel driving military vehicles.

      3. Farmers transporting farm supplies or farm machinery within 150 miles of their farm, or transporting agricultural products to or from the first place of storage or processing or directly to or from market, within 150 miles of their farm.

      4. Drivers of recreational vehicles, as defined in Section 320.01. (Emphasis supplied).

         
         

9. Since there is no dispute that the vehicle in question is a "recreational vehicle," as envisioned by Section 320.01, Florida Statutes, a commercial driver's license should not be

   required. The exemption makes no distinction between drivers who are employed by recreational vehicle dealers in driving such vehicles and drivers who own the vehicles themselves and drive them simply for their own pleasure and purposes.

10. The statute does contain one exception to the exemptions, however. Section 322.53(3), Florida Statutes, states: "Notwithstanding subsection (2), all drivers of for-hire commercial motor vehicles are required to possess a valid commercial driver's license issued in accordance with the requirements of this chapter." Section 322.53(3), Florida Statutes (2000). Thus a fair reading of the statute would be that if the recreational vehicle is "for-hire," then a commercial driver's license would be required.

11. Chapter 322, Florida Statutes, does not define the term "for-hire." In Chapter 320, however, the term "for-hire vehicle" is defined as follows:

    . . . any motor vehicle when used for transporting persons or goods for compensation; let or rented to another for consideration; offered for rent or hire as a means of transportation for compensation; advertised in a newspaper or generally held out as being for rent or hire; used in connection with a travel bureau; or offered or used to provide transportation for persons solicited through personal contact or advertised on a "share expense" basis.

    When goods or passengers are transported for compensation of the state, or when goods are transported in a motor vehicle not owned by

    the person owning the goods, such transportation is "for hire." . . .

    
    

    See Section 320.01(15)(a), Florida Statutes (2000). The Department in this case, in essence, contends that the vehicle itself constituted the "goods" being transported and that, therefore, the travel from Mary Esther to Tampa was "for-hire."

12. The Department's interpretation, however, is based on a federal rule which the Florida Legislature specifically chose not to adopt. The mere existence of a "business purpose," renders such a "for-hire" journey, according to the Department's position. When asked whether a commercial driver's license would be required in this situation, the citing officer quoted a "guidance" issued by the United States Department of Transportation, which states that a driver of a recreational vehicle is not required to possess a commercial driver's license "if the vehicle is used strictly for non-business purposes." This guidance, which relates to Part 383 of Title 49 of the Code of Federal Regulations, was published in the Federal Register at Volume 62, Page 16393.

13. Since this guidance relates to Part 383, which the Legislature chose not to adopt in Florida in Chapter 322, it cannot form a basis for applying that interpretation to the Florida commercial driver's license statute. Clearly, the Legislature chose not to adopt the Federal Regulation concerning

    commercial drivers' licenses in the realm of purely intrastate movement. Moreover, the Legislature stated in no uncertain terms that drivers of recreational vehicles are not required to possess a commercial driver's license, unless their transportation is "for-hire." Under the Florida definition of "for-hire" some measure of direct compensation is required. The mere fact that the transportation is tangentially related to a business purpose does not suffice.

14. The Department also cited a provision of the Code of Federal Regulations describing a "drive-away/tow-away operation." Under the Federal Regulations, a drive-away/tow- away operation means "any operation in which a motor vehicle constitutes the commodity being transported and one or more set of wheels of the motor vehicle being transported are on the surface of the roadway during transportation." 49 C.F.R. Section 390.5. No authority is cited which subjects a so-called drive-away/tow-away operation to the requirements of Parts 383 and 390 through 395. Assuming arguendo that such authority exists, that authority only prevails to the extent that it is not inconsistent with Florida law on the subject. See Section 316.302(2), Florida Statutes (2000).

15. Florida law is not consistent with the broader federal interpretation. The Florida definition states: "when goods are transported in a motor vehicle not owned by the person owning

    the goods, such transportation is 'for hire'." Section 320.01(15)(a), Florida Statutes. If the Department's contention that the vehicle itself constitutes the commodity being transported is correct, it cannot possibly be a "for-hire" vehicle as defined by Florida law. The Florida Statute recognizes what is inherent in the concept of "for-hire," that is that the person transporting the goods is transporting goods for some other person or entity which owns the goods. Hence, the requirement that the person owning the goods not be the same person as the person who is transporting the goods. Since, in this case, the owner of the "goods" i.e., the vehicle, and the person transporting the goods are one and the same, under Section 320.01(15)(a), Florida Statutes, the transportation is not for-hire. The facts show that whether or not Mr. Nessamar owned the vehicle himself he was at least the employee and agent of the Petitioner/owner corporation. Accordingly, no commercial driver's license is required. See Section 322.53(2), Florida Statutes (2000).

16. Further, the Department's interpretation is inconsistent with other published rules on the subject. Rule 15C-12.002(7), Florida Administrative Code, defines a "drive- away operation" as . . . an operation in which any vehicle or vehicles, operated singly or in lawful combinations, new or used, not owned by the transporting motor carrier, constitute

    the commodity being transported." (Emphasis added.) Although this rule was promulgated by the Department of Highway Safety and Motor Vehicles, and is not technically binding on the Department of Transportation, it is fully consistent with the Legislature's definition of "for-hire." The Petitioners are entitled to rely on this rule in determining whether their vehicle constitutes a commercial motor vehicle. That being the case, it must be determined whether, if the vehicle in question is not considered commercial for driver's licensing purposes, is there any reason to suspect that it is nevertheless a commercial motor vehicle for the remaining cited offenses?

17. It would be anomalous to interpret Chapter 316, Florida Statutes, as requiring a vehicle which is not considered as being commercial for driver's license purposes to nonetheless comply with the remaining commercial vehicle requirements. In interpreting statutes, those which concern the same subject matter must be considered in para materia and must be read to achieve a logical consistent result. See Forsythe v. Longboat

    Key Beach Erosion Cont. Dist., 604 So. 2d 452, 456 (Fla. 1992).

    
    

18. At the heart of this matter is the meaning of the term "Any self-propelled or towed vehicle used on the public highways in commerce to transport passengers or cargo . . ." Section 316.003(66), Florida Statutes (2000) (emphasis added). The federal regulations on which the Department relies define

    commerce as "any trade, traffic or transportation within the jurisdiction of the United States . . ." 49 C.F.R. Section 383.5 (2000). The essential terms here are "trade, traffic or transportation." These terms are synonymous with the concept of "for-hire." According to the Department the vehicle is "in commerce" if the owner or driver is being compensated directly or indirectly for the transportation. The Department also relies on the federal definition of "for-hire motor carrier" and equates this term with "in commerce." (See Transcript page 28.) The federal regulations define for-hire motor carrier "as any person engaged in the transportation of goods or passengers for compensation." 49 C.F.R. Section 390.5 (2000). Again the essential element is compensation. The Petitioners herein, however, were not shown to be compensated directly or indirectly for the transportation element of their business operations.

19. The Florida Legislature has required that unless compensation comes directly from a third party, this element is lacking and the transportation is thus not "for-hire." Since the Department correctly equates the terms "for-hire" and "in commerce," under the Department's own interpretation a recreational vehicle which is being driven by a dealer (even for a business purpose), is not "in commerce." Accordingly, the vehicle would fail to meet the definition of "commercial motor

    vehicle" for all the remaining cited violations. Thus, the cited violations cannot stand.

    Unadopted Rule:

    
    

20. In addition to the Department interpretation being in contravention of the specific provisions of law implemented, the Petitioners contend in a statement by counsel at hearing and in their Proposed Recommended Order that the Department has also applied an unadopted rule to the Petitioners. If the Department's interpretation of relevant law amounts to an unadopted rule placed into effect without compliance with Chapter 120, Florida Statutes, then it is unenforceable in that posture even if it were otherwise an allowable legal interpretation.

21. If the Department's interpretation is an unadopted rule, the Department must prove factors "a" through "g" of Section 120.57(1)(e)1, Florida Statutes. It must thus ordinarily first be determined whether the interpretation actually constitutes a rule.

22. Chapter 120, Florida Statutes, defines rule as: "each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency . . ." Section 120.52(15), Florida Statutes (2000). The Department concedes that its interpretation is one of general applicability and that

    it has not adopted this interpretation by administrative rule. There is no question that the statement interprets or prescribes law or policy.

23. The Petitioners, however, did not raise the issue in their Petition. See Section 120.56(4)(a), Florida Statutes. The Petitioners' counsel made a brief comment on the record which would indicate that he wished to establish the agency interpretation to be an agency statement not properly adopted as a rule. That was the only such argument made, however, until the Petitioners' Proposed Recommended Order was filed. Consequently, since the challenge to the agency's interpretation as an unadopted rule was not raised in the Petition and, although somewhat obliquely asserted at hearing in an argument on an objection, it cannot be said that the Respondent Department was put on notice by the pleading to be prepared with evidence on this issue, specifically as to "feasibility," "practicability," and the various proof elements listed in Section 120.57(1)(e)(2)a.-g., Florida Statutes (2000). The Petitioners did not, at the least, move to conform the pleadings to the evidence. Thus, although it may have merit, this attempted challenge to an "unadopted rule" will not be resolved in this proceeding.

Accordingly, having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that a final order be entered finding that the violations charged are unfounded and quashing the inspection report issued against the Petitioners herein.

DONE AND ENTERED this 28th day of January, 2002, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings this 28th day of January, 2002.

COPIES FURNISHED:

Scott A. Matthews, Esquire Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399-0450

Julius F. Parker III, Esquire

Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.

215 South Monroe Street, Suite 200 Post Office Box 10095 Tallahassee, Florida 32302-2095

James C. Myers, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 01-002829

Orders for Case No: 01-002829