Findings Of Fact At all times relevant hereto the Respondent was licensed as a Class "D" Security Officer and held license No. D92-09970. On April 7, 1993 Detective Janice Shine, a deputy sheriff with the Pinellas County Sheriff's office, left her office around 11:00 p.m. driving a 1984 Oldsmobile which was unmarked but not fully equipped to serve as a police vehicle. This was a spare vehicle owned by the Pinellas County Sheriff's office. While Detective Shine was stopped at a stoplight on Ulmerton Road in the left hand lane, Respondent pulled alongside of her vehicle in the center lane. When the light changed, both cars proceeded straight ahead. Respondent pulled in front of Shine's vehicle and slowed down. Shine passed him on the right, and when she did, Respondent indicated for her to pull over to the side of the road. Shine testified that Respondent told her that he was a police officer and that she was speeding. Shine replied that she was a deputy sheriff and for him to grow up. Respondent continued to follow Shine and motioned for her to pull off the road. Detective Shine used her radio to call for back up, and further down Ulmerton Road she did pull off the road. Respondent pulled up behind her. Detective Shine emerged from her car with her sheriff's badge in her hand and proceeded toward Respondent's car. Respondent got out of his car with flashlight in hand and accused Detective Shine of driving while intoxicated. Shortly after these two vehicles stopped, approximately four cars carrying deputy sheriffs and/or police pulled up at the scene. Respondent repeated his accusations against Detective Shine and requested she be given a sobriety test. The officers talked to Shine out of the presence of Respondent, then arrested Respondent on charges of impersonating a police officer. At this time Respondent was dressed in a khaki shirt which was part of his security officer's uniform, with the name of the company for whom he was working on the front of the shirt and an American flag on the shoulder. Respondent was subsequently tried in the criminal court in Pinellas County on charges of falsely impersonating an officer and was found not guilty.
Recommendation It is RECOMMENDED that the Administrative Complaint filed against George Stephanou be dismissed. DONE AND ENTERED this 8th day of November, 1993, in Tallahassee, Florida. K. N. AYERS 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 8th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, DOAH NO. 93-3926 Proposed findings submitted by Petitioner are accepted except: (2) Latter part of sentence starting with "told her". (6) Rejected that Respondent told Shine he was a police officer. (10) Rejected that Respondent had emergency lights. Detective Shine testified he turned on and off his high beams. (12) Rejected that Respondent used his flashlight in an intimidating manner. COPIES FURNISHED: Henri Cawthon, Esquire Department of State The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 George E. Stephanou 24195 U.S. 19 North, Lot 444 Clearwater, Florida 34623 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issue in this case is whether the Respondent correctly assessed a fuel use tax or civil penalty against Petitioner for violations of Sections 207.004, and 316.545, Florida Statutes, and Chapter 320, Florida Statutes, for operating a commercial vehicle on a highway in the State of Florida without vehicle registration and fuel tax registration to operate in the state.
Findings Of Fact On June 1, 1991, a commercial vehicle, operated by Unruh Fab, Inc., was stopped on I-10 in Escambia County, Florida at a Department of Transportation weight station. The weight station is the last exit in Florida for westbound vehicles and is the first exit in Florida for eastbound vehicles. The vehicle was not displaying a fuel use tax device, as required by Section 207.004, Florida Statutes, for its interstate operations and was not registered to operate in the State of Florida as required by Chapter 320, Florida Statutes. The driver did not present any fuel use tax registration documentation or International Registration Plan (IRP) registration as an interstate apportioned vehicle.1/ The Department of Transportation Inspector issued a temporary fuel use permit and an I.R.P. trip permit to Respondent to allow the vehicle to proceed on its way. The total cost of the temporary permits was $75.00. The owner of the vehicle was assessed a $50.00 civil penalty for violation of Chapter 207, Florida Statutes. See, Section 316.545(4), Florida Statutes. Additionally, while the truck was at the weight station, the Department of Transportation Inspector weighed the vehicle. The truck weighed 42,920 pounds. Under Section 316.545, Florida Statutes, Petitioner's vehicle's weight could not exceed 35,000 pounds. Petitioner's vehicle exceeded the 35,000 pound legal weight by 7,920 pounds. A penalty of 5 cents a pound was assessed for each pound over the legal weight resulting in a penalty of $396.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finding that the fee and penalty totaling $521.00 was correctly assessed Unrah Fab, Inc., by the Department of Transportation, under provisions of Sections 207.004 and 316.545, Florida Statutes, and Chapter 320, Florida Statutes. DONE and ENTERED this 1st day of June, 1992, in Tallahassee, Florida. DIANE CLEAVINGER, 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 1st day of June, 1992.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner has leased the motor vehicle that is the subject of the instant controversy, a 1992 Merdedes-Benz 300SE (hereinafter referred to as the "subject vehicle"), from Bill Ussery Motors, Inc., an automobile dealership located in Coral Gables, Florida (hereinafter referred to as the "Dealership"), since October 30, 1991, when he took delivery of the vehicle. At the time of delivery, the subject vehicle was new. Thereafter, various problems developed with the subject vehicle. Petitioner reported these problems to the Dealership, but the Dealership was unable to completely rectify them within 18 months of the date of delivery. Petitioner drove the vehicle less than 24,000 miles during this 18-month period. Some of the problems that Petitioner reported during the first 18 months of his possession of the vehicle still persist today. On or about April 23, 1993, Petitioner sent a completed Motor Vehicle Defect Notification form to the manufacturer requesting that it "make a final attempt to correct the . . . reported . . defects." The manufacturer responded by sending the following letter, dated April 27, 1993, to Petitioner: This will acknowledge the Motor Vehicle Defect Notification form you completed, which was received by this office today. This letter shall serve as a written request to provide Mercedes-Benz of North America ("MBNA") with an opportunity to inspect, verify and if necessary, repair your vehicle. As you are aware, Bill Ussery Motors, Inc., located in Coral Gables, Fl., is a reasonably accessible repair facility. Mr. Eric Moore, Field Service Manager, will contact you to make an appointment to meet with you. If you have any questions or wish to discuss this matter further, please do not hesitate to call me at (904)443-2150. In or about December of 1993, Petitioner retained Joseph Portuondo, Esquire, who sent, on Petitioner's behalf, the following letter, dated December 13, 1993, to the manufacturer: As you know, Mr. Palaez has experienced such difficulty with his automobile that it led to his filing of a Motor Vehicle Defect Notification with you on April 23, 1993. Thereafter, on April 27, 1993, you directed Mr. Palaez to Bill Ussery [Motors], Inc. of Coral Gables, Florida, to attempt the last chance repairs to his automobile. Mr. Palaez complied with your instructions. However, the defects in the automobile remain unresolved and out of service days are well in excess of those required under the Lemon Laws of this state. Simply put, Mr. Palaez has a lemon for which we demand a remedy. As such, we hereby demand that Mr. Palaez be immediately refunded the full purchase price of the vehicle. In the event that you do not immediately provide a refund, we hereby demand that this matter be referred to the appropriate state-certified settlement program. Needless to say, if we are unsatisfied with this matter, we will proceed for relief to the Florida New Motor Vehicle Arbitration Board of the Office of the Attorney General. We trust that our position in this matter is clear. It is truly unfortunate that Mercedes-Benz and its dealer have chosen to treat Mr. Palaez so poorly as a customer that he has had to resort to judicial relief. In response to Portuondo's letter, the manufacturer sent him the following letter, dated December 21, 1993: We are writing in response to the correspondence received by this office today, regarding your client's vehicle. Mercedes-Benz of North America is concerned in this matter and as a result, your concerns have been assigned to Mr. Eric Moore, Field Service Manager, a member of our staff for handling. You will, if not already, be contacted by him in the near future. Thank you for bringing this matter to our attention. On or about December 29, 1993, Portuondo sent Petitioner a copy of the manufacturer's December 21, 1993, letter, along with the following cover letter: Enclosed herein please find a letter recently received [with respect to the above-referenced] subject matter. I will let you know if there is any progress. Petitioner waited until August 12, 1994, to file with the Department his Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. He did not file a request sooner because, from April of 1993, the manufacturer and Dealership had repeatedly made representations to him, upon which he relied, that they would either make the necessary repairs to the subject vehicle or otherwise resolve the matter to his satisfaction so that there would be no need for him to resort to arbitration or litigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner's request for arbitration is not time-barred. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of March, 1995. STUART M. LERNER 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 20th day of March, 1995.
The Issue The Petitioner appeals the disapproval of its license transfer application by the Respondent. Hence the issue posed is whether or not the Respondent unlawfully disapproved the application for transfer on the grounds that "the location failed to qualify for zoning approval" within the meaning of Section 561.18, F.S. The premises sought to be licensed is located at 1480 South Ocean Boulevard, Pompano Beach, Florida. The former name of the business was Paddock International, Inc., d/b/a Paddock International. The proposed name of the new business is Jacob's Ladder, Inc., d/b/a Jacob's Ladder. When the application for transfer was submitted to the Division of Beverage for approval, it was rejected on May 19, 1976, for, as previously stated, the reason that it "failed to qualify for zoning approval", citing Section 561.18, F.S., as amended. The disapproval was appealed and the matter is now before the undersigned to determine whether or not the applicants and the premises met all of the qualifications required in the beverage law. The Petitioner takes the position that the Respondent's and County Zoning Board's action amounts to arbitrary and capricious conduct and that in no instance, has zoning approval been required in license approval situations. C. Lloyd, Respondent's representative and employee for approximately eight years, testified that he processes approximately 600 license applications yearly of which approximately 40 to 50 percent represent transfer applications. Based on his experience, the Petitioner's application is the only transfer application requiring zoning approval. He was advised during his investigation by a Mr. Kauth that the Broward County Zoning Board acted on a previous mix-up in the type of license which was previously issued and the county was misinformed in giving zoning approval to the prior licensee. He testified further that in almost all cases no inspection is made as to whether or not the particular premises meets the zoning requirements in transfer application situations. By way of background, the record evidence reveals that the license was initially issued to the owners of the premises sought to be licensed here on or about January 4, 1960. Since that time, approximately 21 licenses have been issued and/or renewed and at no time has zoning ever surfaced as a problem. The most recent zoning certificate was dated December 4, 1974 and the zoning was satisfactory at that time. George Maurer, Chief of Zoning Inspection for Broward County and who has served as the Zoning Chief for the past three years testified that he supervises personnel in the zoning department and is charged with maintaining records; overseeing and enforcing zoning procedures. He recalled being asked to sign the zoning approval form for the subject premises and he refused in that there was no certificate on file and according to his testimony, such must be current with the present owner's name contained thereon. He admitted that the prior zoning approval certificate had not been revoked either administratively or otherwise and that there was no hearing as to any proposed revocation or notice of any intent to revoke the current zoning approval certificate. The zoning approval was withheld here due to the inadequate parking spaces and for violations of the South Florida Building Code and numerous other code violations. To the best of his knowledge, the code violations had been corrected with the exception of a sign which was erected on the premises sought to be licensed. When Petitioner filed its application for transfer of license from the previous owners, he was advised that there existed 47 parking spaces, however, based on a field examination conducted by him on August, 1976, his inspection revealed that there were only 38 parking spaces. On cross examination he testified that there has been no change in the zoning regulations from the time of issuance of the prior zoning certificate through the time that the disapproval was given for the license application in question. Robert R. Krauth, Deputy County Administrator of Broward County, testified he mailed a mailgram to beverage agent Joseph J. Scozzafava and advised that the zoning certificate had been improperly granted for the premises sought to be licensed under the previous ownership. The testimony is that he had no knowledge that zoning certificates were required in transfers and that to his knowledge no steps had been taken to close the restaurant due to these alleged inadequacies. On cross examination he testified that he had some knowledge that the use of the premises had changed however he had no evidence on that point. He received no complaints from Jacobs Ladder and to his knowledge the sole problem centered around the inadequate parking spaces. George C. Gatterer, 2/ an employee of Broward County Board of County Commissioners and the Assistant Director of General Services for the zoning department, testified that the area is located in a R-6 zoning area. The zoning certificate could not be approved for the subject premises based on the "improper parking spaces". He was aware of no regulation which required that new zoning certificates be changed based solely on a name change. He knew the former compliance officer, Smith, who certified that the property had been in compliance during the prior periods in which the zoning approval had been certified. Other evidence revealed that the parking lot had not changed nor had the use changed and that prior licensees had no problem getting licenses transferred. Petitioner's agents attempted to obtain parking in contiguous areas but were unable to obtain such.
Findings Of Fact Based on the record evidence, it is clear that the request for a new zoning certificate was a new procedure utilized by the Division of Beverage in the subject case. Respondent's own witness testified that he was in charge of processing most license transfers and that he was aware of no other application in which a zoning certificate was required in order to gain transfer approval from the Respondent. The evidence further revealed that the same number of parking spaces, at least in terms of footage, now exist as has existed when zoning approval was given in the earlier situations. This situation has existed for more than 16 years and the county's witness who is in charge of the zoning approval testified that there has been no change in the zoning regulations since the issuance of the most recent zoning certificate in 1974. Evidence further reveals that at no time did the Petitioner receive and notification that the prior zoning approval was being withdrawn either administratively or otherwise, nor was any notice given of an intent to revoke the prior zoning approval. Based on these facts, the undersigned concludes that the requirement that a zoning approval be submitted along with the transfer application in this case represented a marked departure from the existing rules, regulations and procedures of the Division of Beverage, and amounted to a denial of due process. Based thereon I shall recommend that the transfer application be approved since, in my opinion, based on the evidence presented, the premises possess the requisite qualifications as required by the beverage law. It thus appears that Respondent's failure to approve the application for reasons advanced cannot stand and I shall recommend that the approval be issued forthwith.
Recommendation Based on the foregoing findings and conclusions of law, I recommend that the Department of Business Regulations, Division of Beverage, approve the application submitted in the subject case. DONE and ENTERED this 27th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Respondent, Columbia Motor Sales, is a motor vehicle dealer licensed under Section 320.27, Florida Statutes. Respondent is owned solely by Jose B. Menna. In order to obtain the license, Menna completed an application for licensure on behalf of Respondent and filed it with DMV on July 5, 1991. The license was issued the same day. On the application, which was signed by Menna under oath, Menna answered "NO" to the following questions: Has the applicant or any partner or corporate officer or director: Been arrested on a felony or equivalent charge anywhere? Been convicted of a felony or equivalent charge anywhere? As required by Section 320.37(3), Florida Statutes, DMV obtained fingerprints from Menna and submitted them to the Florida Department of Law Enforcement and the Federal Bureau of Investigation (FBI) for confirmation of Menna's criminal record. The FBI's criminal history report shows that Menna was arrested for the felonies of receiving stolen property and assault with a deadly weapon and was convicted of the felony assault charge. If an applicant shows an arrest or conviction on his dealer license application, DMV's policy does not require an automatic denial. If only an arrest is shown, DMV conducts a further investigation to determine the applicant's fitness for licensure. If a conviction is shown, DMV would also investigate the seriousness and nature of the offense, whether the applicant's civil rights had been restored, and the surrounding circumstances before DMV would make a determination on the application. When an applicant does not reveal prior arrests or convictions on his application and DMV discovers their existence, DMV notifies the licensee and gives him an opportunity to submit documentation to clear the matter up informally. DMV did send Menna a letter advising him that there was a problem with his criminal record. The letter required Menna to provide information and documents regarding these criminal events within 20 days. It further stated that "Failure to respond to this letter will result in an administrative proceeding to revoke you license." Menna acknowledges that he received the letter, but he went to Guatemala for five weeks to sell cars and did not respond to the letter. After he returned, he says that he tried to call DMV, but at no time did he ever provide documents regarding these arrests and conviction. In fact, even at the hearing, he had no such documents with him. DMV's policy and position is that an applicant's failure to disclose and truthfully answer the questions on the application raises serious questions as to the applicant's honesty and integrity in dealing with the public. Menna testified that if he'd known that there were records showing the arrests and conviction, he would have answered the questions on the application "YES." He admits knowing that he had been arrested and convicted as the records show, but believed the records no longer existed. It is found that Menna was not honest when he denied having been arrested or convicted, because he knew of the existence of the arrests and conviction at the time he denied them. The question was simple and straightforward. Menna believed that his denial would not be a lie as long as no records existed to show the arrest and conviction. Menna was wrong in this belief.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, enter a Final Order and therein revoke the motor vehicle dealer license of Columbia Motor Sales. RECOMMENDED this 8th day of July, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1788 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Division of Motor Vehicles Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-7(1-7), 8 & 9(7), and 10- 13(8-11). Proposed finding of fact 14 is unnecessary. COPIES FURNISHED: Michael J. Alderman Assistant General Counsel Division of Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, FL 32399-0500 Stephen M. Witt Attorney at Law Post Office Box 2064 Lake City, FL 32056
The Issue Whether Petitioner is entitled to a refund for sales taxes paid by Petitioner to Respondent on valet parking transactions for the period May 1, 1997 through April 30, 2002.
Findings Of Fact The Department is the agency of the State of Florida charged with implementing the state tax statutes. The Sheraton operates a full service hotel, the Sheraton Bal Harbour, located at 9701 Collins Avenue, Bal Harbour, Florida. The Sheraton is licensed as a hotel under the provisions of Chapter 509, Florida Statutes (2004). The Sheraton’s principal business is providing lodging, food, and other services to the guests of its hotel. The Sheraton provides valet parking to its hotel guests and visitors. Upon arrival at the Sheraton, a guest or visitor arriving by motor vehicle provides his or her vehicle and the vehicle keys to the parking attendant. The parking staff provides the guest or visitor with a valet parking ticket. The parking attendant collects the valet parking fee upon departure or charges it to the guest room. The Sheraton’s parking is located in a building on the Sheraton’s grounds that is secure. No hotel guests, visitors, or members of the general public are allowed in the parking building. No guest or visitor to the Sheraton can park his or her vehicle on the Sheraton’s grounds without using the valet parking. There are no self-parking spaces on the Sheraton’s grounds. No member of the valet parking staff and no member of the hotel staff is authorized to use a guest’s or visitor’s vehicle for any activity other than to park and return the vehicle to the guest or visitor at his or her request. There is no time when the vehicle would not be delivered to the guest or visitor upon request. The Sheraton’s guest or visitor may request his or her automobile at any time and it is delivered.1 The Sheraton’s guest may go in and out and request the vehicle several times a day or night without a separate charge. (This may not apply to a visitor to the Sheraton.) There are not very many public overnight parking spots near the Sheraton. The Bal Harbour Shops2 are located across the street from the Sheraton. The Bal Harbour Shops has its own paid self- parking and valet parking services available. The Sheraton, on a regular basis, utilizes the Bal Harbour Shops’ parking spaces for its valet parking when there is overflow from the parking available on its premises. The Sheraton pays a per space charge to the Bal Harbour Shops for these parking spaces, and sales tax is included in this charge. The Sheraton’s fee for valet parking services is a flat fee and does not identify a separate charge for valet services, for a parking space, or for sales tax. The Sheraton advises its guests and visitors that it is not responsible for damages to the vehicle parked by the valet parking except through its staff’s negligence. The Sheraton does pay on a regular basis for fixing cars that are damaged while in its possession. The Sheraton’s valet parking ticket and signs posted at its entrance contain terms and conditions for the valet parking, which include the following: Vehicle is accepted for parking only. We (Sheraton) assume no liability for fire, theft, vandalism, flood, or damage in any case except through our own negligence. We are not bailees and are not responsible for loss or damage of any article left in vehicle including but not limited to radar detectors, cellular phones, money, etc. The owner of the vehicle acknowledges that he is in constructive possession and control thereof at all times. [3] No notification was made by the Sheraton to its guests or visitors regarding any sales tax on valet parking during the period at issue in this proceeding. Through internal accounting records, the Sheraton allocated a portion of the parking fees collected to sales tax and remitted that amount to the Department. Sales tax was not stated on any invoice nor did the Sheraton’s valet parking signs posted at the hotel’s entrance mention sales tax. During the period from May 1, 1997 through April 30, 2002, the valet parking charges ranged from $12.00 to $18.00 per day for overnight valet parking. On a monthly basis, during the refund period from May 1, 1997 through April 30, 2002, the Sheraton paid to the Department sales taxes on valet parking in the total amount of $329,497.20. On or about July 9, 2002,4 the Sheraton applied to the Department for a refund in the amount of $329,497.20 for the sales taxes it paid during the refund period. On June 11, 2003, the Department denied the refund request. On August 4, 2003, the Sheraton filed a protest with the Department. On April 27, 2004, the Department issued a Notice of Decision sustaining the denial of the refund. The Sheraton thereafter timely filed the Petition for Administrative Hearing which initiated this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying the subject application for a refund. DONE AND ENTERED this 4th day of October, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 the Clerk of the Division of Administrative Hearings this 4th day of October, 2004.
Conclusions This matter came before the Department for entry of a Final Order pursuant to an order closing the file of the Division of Administrative Hearings. The record reflects that the parties have settled their dispute and entered into a Settlement Stipulation, which Settlement Stipulation is hereby adopted by reference. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: 1. Respondent has admitted the allegations of the administrative complaint in this matter. 2. Respondent has agreed to pay and has paid a civil fine of $600.00 by certified cashier’s check, receipt of which is acknowledged by the Department. 3. Each party will bear his or its own costs and attorney fees. DONE AND ORDERED this L 4 of July, 2009, in Tallahassee, Leon County, Florida. L A. FORD, Direet6r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division otor Vehicles this 2 day of July, 2009. Copies furnished: Michael J. Alderman, Esquire Senior Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 Anthony Bliss 5325 Northwest 49 Court Coconut Creek, Florida 33073 Larry J. Sartin Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550" Dwight Davis Bureau Chief, Division of Motor Vehicles Wayne Jordan Program Manager, License Installer Program William Camper Hearing Officer Division of Motor Vehicles Billy Rankin Chief, Bureau of Field Operations Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent owned a commercial vehicle identified as a 1983 KW, VIN:IXKKD28X3DJ298929 (vehicle) which was operated by Trinity Trucking of Tampa, Florida. On August 7, 1990 the Respondent's vehicle while traveling on S.R. 5 in Monroe County, Florida was stopped and weighed by the Department. The total weight of the vehicle was 79,440 pounds consisting of 10,380 pounds on the steering axle, 35,900 pounds on drive tandem and 33,160 pounds on rear tandem. A Load Report and Field Receipt was completed and indicated the legal weight to be 35,000 pounds. This is the legal weight established for a commercial vehicle by Section 316.545(2)(b), Florida Statutes when that vehicle has an expired registration. The Respondent's Florida International Registration Plan (IRP) Temporary Operational Permit No. 061084 had expired on August 3, 1990, and Respondent had not obtained another Florida IRP Temporary Operational Permit or a current registration for the vehicle on August 7, 1990 when the vehicle was stopped and weighed. Using the "no tag" tax class weight of 79,440 pounds and subtracting the legal weight of 35,000 pounds as established by statute the vehicle was 44,440 pounds overweight. The Department assessed the Respondent a penalty of $0.05 per pound for each pound the vehicle was overweight which resulted in a total penalty assessed the Respondent of $2,222.00. After the Respondent purchased a valid tag for the vehicle and paid the penalty the vehicle was released. Respondent applied for registration in the Florida IRP in accordance with Section 320.0715, Florida Statutes, and was issued a 60-day Temporary Operational Permit in accordance with Section 320.0715(3), Florida Statutes, on June 4, 1990 with an expiration date of August 3, 1990. Sometime around June 28, 1990 Respondent was advised by the Department of Highway Safety and Motor Vehicles (DHSMV) that additional information was needed in order to further process his application for registration in the Florida IRP. Sometime around the week of July 9, 1990 Respondent mailed the requested information to IRP, Motor Carrier Service. DHSMV, however, the letter was misdirected to the Internal Revenue Service (IRS), possibly the U.S. Postal Service confused IRP with IRS, but, in any event, the information was returned to the Respondent in October 1990 by IRS. By this time, the Respondent had purchased a valid Florida tag and decided not to pursue registration of this vehicle in the Florida IRP. Respondent admitted that he was aware that the temporary operational permit for the vehicle expired on August 3, 1990 even though he was not personally operating the vehicle. Respondent also admitted that he made no inquiry to the DHSMV as to the status of his application for registration and did not request any extension of his temporary operational permit before the permit expired or before the vehicle was found to be overweight on August 7, 1990. It was only after the vehicle was found to be overweight due to the expired permit that Respondent checked with DHSMV and was advised that the requested information had not been received. There was no evidence that it was the policy of the Department to disregard the provision of Section 316.545(2)(b), Florida Statutes, establishing a legal weight of 35,000 pounds for a vehicle with an expired registration when the DHSMV had an application on file for registration in the Florida IRP which was being processed by DHSMV. On August 7, 1990 the Respondent's vehicle was 44,440 pounds overweight when it was stopped and weighed in Monroe County, Florida on S.R. 5, and the calculation of the penalty ($0.05 x 44,440 pounds = $2,222.00) is correct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Department enter a Final Order finding the Respondent subject to the penalty as assessed and denying his request for refund of the penalty. DONE and ENTERED this 21st day of October, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-4945 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in substance as modified in Findings of Fact 2, 3, 4 and 5. Adopted in substance as modified in Findings of Fact 6, 7 and 8. Adopted in substance as modified in Finding of Fact 10. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent waived the filing of proposed findings of fact and conclusions of law. Copies furnished to: Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458 Glenn E. Porter 5213 Fourth Street Bradenton, FL 34203 Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, M.S. 58 Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
