Findings Of Fact On September 27, 1995, Petitioner was operating a motor vehicle as a commercial carrier (the "truck") on State Road 527 in Orange County, Florida. The truck was filled with 1,187 gallons of diesel fuel. The truck was placarded as carrying a combustible and flammable petroleum product. Petitioner drove his truck across the railroad crossing at the intersection of Orange Avenue and Land Street Road without first coming to a complete stop. Officer Jorge Ramon of Respondent's Motor Carrier Compliance Division observed Petitioner cross the railroad crossing without coming to a complete stop. Officer Ramon saw the entire incident. Nothing obstructed Officer Ramon's view. Officer Ramon observed the truck during the entire incident. Officer Ramon stopped Petitioner after the improper crossing and fined Petitioner $250 pursuant to Section 316.3025, Florida Statutes. 1/ The fine was appropriate for the violation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein find Petitioner guilty of violating Section 316.302(1)(a) and 49 C.F.R. Section 392.10, sustain the $250 fine, and DISMISS the challenge by Petitioner. RECOMMENDED this 27th day of March, 1996, in Tallahassee, Florida. DANIEL S. MANRY, 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 27th day of March, 1996.
The Issue The issue presented here concerns the question of whether the Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, should grant the Petitioner, Ross Chevrolet, Inc. (Ross), an amendment to its motor vehicle dealer license in accordance with Section 320.642, Florida Statutes, on the basis that the Petitioners in this cause, Ross and General Motors Corporation, GMC Truck and Coach Division (GMC), in the face of the challenge to Ross's licensure offered by the Respondent, Hunt Truck Sales and Service, Inc. (Hunt), have proven that the existing GMC heavy-duty truck dealers in the territory or community are providing inadequate representation for GMC. 1/
Findings Of Fact Case History On June 4, 1980, the Petitioner GMC entered into a Heavy-Duty Truck Addendum with Petitioner Ross to amend Ross's Dealer Sales and Service Agreement to enable Ross to sell Series 80 and Series 90 model heavy-duty trucks produced by GMC. The heavy-duty truck dealership would be located at Ross's existing heavy-duty truck facility, 2530 30th Avenue North, St. Petersburg, Florida. The Respondent Hunt having learned of GMC's intentions to grant a franchise to Ross, protested Ross's licensure before the Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, that protest having been made in keeping with the terms of Section 320.642, Florida Statutes. After receiving the Respondent Hunt's protest, the Division of Motor Vehicles forwarded the case to the State of Florida, Division of Administrative Hearings for a hearing pursuant to Section 120.57(1), Florida Statutes. A formal hearing was held on February 25 and 26, 1981, following the succeeding prehearing matters. Several theories were advanced prior to hearing on the subject of the ability of the Director, State of Florida, Department of Highway Safety and Motor Vehicles, to consider the issue of granting the Petitioner Ross the motor vehicle dealer's license requested of that Division and the opportunity for the Respondent Hunt to protest the grant of that license. In the logical order of the treatment of these questions, they were presented as follows: The Respondent Hunt's Motion to Dismiss this action on the theory that Ross's application for licensure from the Division was premature, in that the community or territory proposed for this licensure had not been established through the application process. The Petitioners' Motion to Dismiss or in the Alternative, Motion for Summary Recommended Order on the grounds that: The application by the Petitioner Ross was a replacement application and, therefore, not subject to protest under the terms of Section 320.642, Florida Statutes, such protest being by the Respondent Hunt. Hunt was not a dealer within the same community or territory as Ross; consequently, the Ross application was not subject of protest by Hunt, in keeping with the authority of Section 320.642, Florida Statutes. A hearing was held on these jurisdictional motions on October 10, 1980, wherein evidence was presented. The Hearing Officer issued a Recommended Order which recited the fact that Ross's application for a GMC heavy-duty truck franchise resulted from Chevrolet's discontinuation of their heavy-duty truck marketing effort. The Order held that, for the purposes of heavy-duty trucks, Pinellas and Hillsborough Counties are within the same "territory or community." The Order went on to suggest that the dealer franchise sought by Ross was a replacement, not a new dealer license thereby depriving the Respondent agency of subject matter jurisdiction within the meaning of Section 320.642, Florida Statutes, and necessarily depriving the Respondent of standing to challenge the licensure. See Southside Motor Company, etc. v. Askew, 332 So.2d 613 (Fla. 1976). On December 15, 1980, John D. Calvin, Director, Division of Motor Vehicles, issued an "Order on Jurisdiction" which rejected the Recommended Order finding that Ross is a new dealer not a replacement dealer, but accepting the Recommended Order insofar as its finding that Pinellas and Hillsborough Counties are within the same "territory or community." Calvin remanded the case to the Hearing Officer for a final hearing on the issue of adequacy of representation as set forth in Section 320.642, Florida Statutes. On January 6, 1981, this Hearing Officer accepted the case on remand from Calvin upon Calvin's conclusion that "there is subject matter jurisdiction to consider the opposition to the motor vehicle application." GMC and Ross filed a petition for review of non-final agency action, pursuant to Section 120.68(1), Florida Statutes, requesting that the Second District Court of Appeal, State of Florida, review Calvin's Order on Jurisdiction. Subsequent to the filing of the appeal, Hunt filed a Motion for Continuance with the Hearing Officer and a Motion to Stay Order on Jurisdiction directed to the Division of Motor Vehicles. The Motion for Continuance was denied by the Hearing Officer and the Motion to Stay Order on Jurisdiction was granted by Calvin on February 17, 1981. After having heard oral argument and receiving written citations of authority from the parties, the Hearing Officer, on February 23, 1981, ruled that the hearing would proceed as scheduled. On February 24, 1981, the day prior to the date set for the final hearing, Respondent Hunt filed a Motion to Confirm Stay in Case No. 81-82, Second District Court of Appeal, which was then pending upon Petitioners GMC and Ross's appeal, and a Petition for Writ of Prohibition and Show Cause Order and Motion for Emergency Stay directed to the Hearing Officer, Case No. 81-359, seeking to prevent the conducting of the final hearing herein. All relief sought by Respondent Hunt was denied by the Second District Court of Appeal on February 24, 1981, and the final hearing on the merits in this matter proceeded as scheduled February 25 and 26, 1981. This Recommended Order results from that hearing. Parties Petitioner GMC is a truck manufacturer that offers for sale light, medium and heavy-duty trucks in the United States primarily through retail outlets owned and operated by independent business entities. The model line which is the subject of this proceeding-includes only heavy-duty trucks in GMC's 80 and 90 Series. The Petitioner Ross was the holder of a heavy-duty truck addendum to sell Chevrolet trucks for General Motors Corporation. The Chevrolet heavy-duty truck line is no longer produced by that manufacturer and Ross now seeks a Florida dealer license for permission to sell GMC heavy-duty trucks at the aforementioned location in Pinellas County, Florida. The Despondent Hunt is a truck dealership, licensed by the State of Florida, to handle (NC light, medium and heavy-duty trucks, as well as White, Freightliner, Volvo, and Mercedes-Benz heavy-duty trucks. Hunt's dealership is located at 8211 Adano Drive, Tampa, Florida, within Hillsborough County. . 14. The Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, is an agency of the State of Florida which has among other functions the responsibility to evaluate and issue motor vehicle dealer licenses to those applicants who intend to sell motor vehicles in the State of Florida. This responsibility is mandated by Chapter 320, Florida Statutes. As an adjunct to this process, the Respondent, Division must act in accord with the provisions of Section 320.642, Florida Statutes, which creates the opportunity for ongoing dealers in the community or territory of a proposed dealer to protest the grant of the prospective dealer's license, in keeping with prior decisions of the agency and court opinions that have spoken to the issue of the Division's function in this specified requirement. Marketing The "primary area" of responsibility as designated and defined in the GM Dealer Sales and Service Agreement related to the existing franchisee Hunt, is constituted of Pinellas, Hillsborough, and Pasco Counties, Florida. Should Ross be approved for licensure by the State of Florida it has also been offered that same "primary area" of responsibility by GM. Petitioner's Exhibit No. 10 depicts the physical location of the Hunt operation in Tampa, Florida, and of the facility of Ross in St. Petersburg, Florida. The distance between those two dealerships is approximately 27 miles and the driving time necessary to traverse that distance is approximately 45 minutes. In the "primary area" of responsibility for Hunt and prospectively for Ross, there are 8 heavy-duty truck manufacturers represented to include: GMC, Volvo, Freightliner, White, Mark, International, Ford, and Kenworth. At Present all of those manufacturers have dealerships in Hillsborough County, Florida. There are 8 GMC heavy-duty truck dealerships in the State of Florida, which is part of the Atlanta zone for GMC, which has a total of 20 heavy-duty dealerships in four states to include Florida. Three of the GMC heavy-duty truck dealerships in Florida are located on the west coast of Florida. There are 281 GMC heavy-duty dealerships nationally. As reflected in Petitioner's Exhibit No. 1, heavy-duty truck registrations for all manufacturers for Hillsborough, Pinellas and Pasco Counties for the period 1975 compared to 1979 grew by 125 percent from 605 units to 1362 units. That same exhibit indicates registrations in Pinellas County, referring to that time period 1975 through 1979, to be: 1975-78; 1976-108; 1977-113; 1978-240; 1979-275. During the period of those full reporting years reflected in Petitioner's Exhibit No. 1 in the aforementioned three-county area, that is 1975 through 1979, the number of Chevrolet heavy-duty trucks sold was 6, 19, 13, 24 and 55 respectively as opposed to 106, 74, 215, 266 and 191, respectively for GMC heavy-duty trucks in those counties. Petitioner's Exhibit No. 1 shows, when comparing GMC registrations in Pinellas County to those in Hillsborough County, that for the full year periods 1975 through 1979, Pinellas County registrations were considerably less. Pasco County registrations for GMC were even less significant when this comparison is made. Petitioner's Exhibit No. 5 entered into evidence, is a printout of retail sales made by Hunt and reports part of the calendar year 1976, all of the calendar years 1977, 1978, 1979, and part of the calendar year 1980. This information is based upon data provided by Hunt to GMC. When contrasting this exhibit with Petitioner's Exhibit No. 3, admitted into evidence, which is a summarization from R. L. Polk Company data related to truck registrations in the rePorting years 1977 through 1979, one additional sale by Hunt is reflected in Petitioner's Exhibit No. 5 as contrasted with the Petitioner's Exhibit No. 3, related to registrations. There are also some minimal differences in the registration data in Petitioner's Exhibit No. 1 compared to Petitioner's Exhibit (These differences should be evaluated in conjunction with the following paragraph.) Turning to an examination of Respondent's Exhibit No. 3, which Respondent Hunt contended represented additional sales by Hunt not reflected in Petitioner's Exhibit No. 5, it should be noted that this exhibit, Respondent's Exhibit No. 3, expands the reporting period of Petitioner's Exhibit No. 5. Taking as correct the stated purpose of Respondent's Exhibit No. 3 to be one of demonstrating additional truck sales in Pinellas County bade by Hunt which are not reflected in Petitioner's Exhibit No. 5, data provided by Hunt; those sales as shown on pages 2, 4, 5, 13, 17, 18, 26, 29 and 32 of Respondent's Exhibit No. 3, add nothing to the total in that they were made by Pinellas Truck Sales, Inc., a light and medium-duty truck franchisee for GMC, not part of the Hunt Addendum with GMC to sell heavy-duty trucks. In addition those sales reflected in pages 10 and 14 of the Respondent's Exhibit No. 3 were not made in Pinellas County. Those sales in Respondent's Exhibit No. 3 found at pages 9, 12 and 16 are excluded for reasons that they are already reflected in Petitioner's Exhibit No. 5. Those sales at pages 19 and 33 of Respondent's Exhibit No. 3, are excluded because they are intradealer sales and should not be counted in marketing analysis. Finally, that sale by Pinellas Truck, which is reflected at cage 17 of Respondent's Exhibit No. 3, is also shown in the Petitioner's Exhibit No. 5, at page 12, line 31, and should be removed from Petitioner's Exhibit No. 5 as part of the count. Likewise, that intradealer transfer or sale reflected on page 19 of Respondent's Exhibit No. 3 is reported at page 13, line 41 of Petitioner's Exhibit No. 5, and should reduce the Pinellas County sales in Petitioner's Exhibit No. 5 by one unit. In summary, of the 35 additional sales which the Respondent Hunt claims to have made in Pinellas County which are not reflected in the Petitioner's Exhibit No. 5, 16 of those sales are disallowed and Petitioner's Exhibit No. 5 is reduced by 2 units. Again, considering Petitioner's Exhibit No. 1 it indicates that at the time Chevrolet had a heavy-duty truck dealership in Pinellas County, Florida, its performance was stronger in that county than in Hillsborough County, Florida, and the same observation can be made of GMC's heavy-duty truck performance, in that their performance in Hillsborough County had been stronger than its Pinellas County performance in a circumstance wherein GMC had a heavy- duty dealership in Hillsborough County. This indicates a sales advantage for the dealerships in the counties where they are found, particularly when you consider the similarity between GMC and Chevrolet heavy-duty trucks as reflected in the initial Recommended Order in this cause dated October 24, 1980, which findings of fact related to the similarities are incorporated by reference herein. On the subject of the Pinellas County market, historically sales of Chevrolet heavy-duty trucks made by the Petitioner Ross have been more along the lines of non-fleet customers with one or two purchases as contrasted to truck sales by Hunt, which have been more in the way of fleet sales. Most of the Ross accounts are with small customers. To be successful in marketing the product in Pinellas County or elsewhere, the heavy-duty truck business requires selling outside the dealership, in that the marketing is not similar to the sales of automobiles. Customers do not come to the showroom to make the purchase, the dealer must canvass outside the dealership through dealer salesmen. Ross had five salesmen canvassing end soliciting in Pinellas County with emphasis on small fleet buyers, i.e. buyers of one to five trucks. Small customers ordinarily do not do their own maintenance, and location of a dealership for maintenance purposes is an important consideration for that purchaser. This is contrasted with larger buyers who solicit bids with less regard to dealer location and availability of service. Without easily accessible service, the small buyer suffers great business damage when his equipment is down for repair. Hunt has also actively solicited business in Pinellas County and has employed three full-time parts salesmen, and has made substantial sales on accounts receivable in Pinellas County during the year 1980. It has 168 employees, 28 of which are in parts and 19 are salesmen. Pinellas County as a "Community or Territory" In the preliminary jurisdictional decision, from the evidence presented it appears that "primary area" of responsibility as designated by GM for Hunt and Ross to sell GMC heavy-duty trucks and the "community or territory" within the meaning of Section 320.642, Florida Statutes, related to Hillsborough, Pinellas and Pasco Counties were synonymous. After reviewing the facts presented in the expanded hearing held in February, 1981, Pinellas County is found to be a separate and distinct "community or territory," and having decided that Pinellas County constitutes a "community or territory" within the meaning of Section 320.642, Florida Statutes, separate and apart from Hillsborough and Pasco Counties, the following supplemental facts are offered in support of this finding: Pinellas County's population, according to the Bureau of Census in 1970, was 522,329 and it has grown to 721,227 - a growth rate of about 38 percent. Projection by the University of Florida, Division of Population Studies, Bureau of Economic Analysis, indicate a growth rate for the next decade of around 29 percent. According to the Center for Economic Management Services, there were 224,000 persons employed in Pinellas County in August, 1980. Principal industries in Pinellas County are tourism, construction and light manufacturing. The 1977 Census of Economic Activities by the US. Bureau of the Census indicated 803 manufacturing firms in Hillsborough County as contrasted with 866 of those firms in Pinellas County. A smaller number and percentage in Pinellas County were classified by this census as being large firms with 20 or more employees.
The Issue The issue is whether Respondent's proposed award of a portion of Bid No. 99-79 for retread tire services to Dave Howell Tires was arbitrary and capricious, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Escambia County Utilities Authority (Authority), is a local governmental body governed by Chapter 92- 248, Laws of Florida. The Authority manages and operates certain utility systems within Escambia County, Florida, and areas adjacent thereto. It is governed by a board consisting of five elected members. To assist it in carrying out its duties, the Authority has adopted the Escambia County Utilities Authority Code (Code), which contains various regulations, including Chapter 13, pertaining to Purchasing Procedures. Pertinent to this controversy are Sections 13-2(b)(1), 13-2(d), and 13-12, which authorize the Authority to accept or reject bids, to separate bids into more than one part, and to give preference to local vendors, respectively. By public advertisement made on September 16, 1999, the Authority solicited sealed proposals for Bid No. 99-79 for the supply of new truck tires and retread services for its sanitation truck fleet. The contracting period would run for two years. Such proposals were to be filed by interested vendors no later than 2:00 p.m., Thursday, September 30, 1999. The bid specification identified the new tires and retread services as separate items, meaning that each could be awarded to separate bidders, as authorized by Section 13-2(d) of the Code. The bid also provided that the Authority "reserved[d] the right to waive informalities in any bid; to reject any and all bids in whole or in part; and to accept the bid[s] that in its judgment is the lowest and most responsible." In response to that invitation, four vendors, including Petitioner, Eagle Tire & Service Center (Eagle), and Dave Howell Tires (Dave Howell), located in Milton and Pensacola, Florida, respectively, timely submitted sealed proposals. Eagle was found to have the lowest dollar bid for both items. On the retread portion of their responses, Eagle's bid was for $83,100.00, while Dave Howell's bid was for $83,934.36, or a difference of slightly more than $900.00. At issue in this case is the retread portion of the bid. In its proposal, Eagle offered to supply specially engineered Goodyear retreading from its facility in Atmore, Alabama, some 45 minutes north of Pensacola. On the other hand, Dave Howell, whose facility is located in Pensacola, offered to use Bandag rubber on its retreads, which is another widely- recognized retread brand. According to the Authority's director of sanitation, Jerry Moore (Moore), he saw no difference in the quality of the two products. Bid proposals are first reviewed by the department head who is directly affected by the solicitation; that individual makes a recommendation to the Finance Advisory Committee (Committee), which then presents its recommendation to the Authority. The Committee is made up of seven members, including two members of the Authority (Dale Perkins and George Watson) and five appointed citizens. In this case, the bids were opened and reviewed by Moore, the director of sanitation. On the afternoon of October 19, 1999, the Committee reviewed Moore's recommendation regarding the award of a contract. The Committee unanimously accepted Moore's recommendation that Petitioner, the lowest bidder, be awarded a two-year contract for both new and retread tire services. During the course of the Committee meeting, representatives of both Eagle and Dave Howell spoke to the Committee in support of their respective proposals. In addition, Dr. Larry N. Walker (Dr. Walker), a member of the Authority, appeared before the Committee to make comments favorable to Dave Howell. Among other things, Dr. Walker made the following statements: I come before you as something of a partisan today. I'm a friend of Dave Howell. I buy all my tires from his store. [B]ecause of conversations I've had with him and other input . . . this is one of those instances where we will actually come out ahead if we were to select the higher bid. I was not asked, t but it was] suggested by Mr. Howell that I call someone at the Escambia County School Board and ask them about their experience with Dave Howell Tires, his retreads, and I called Jerry Watson, one of the assistant superintendents, and Mr. Watson just was, was just very effusive in his compliments of the tires saying that their [tires were] far better than they had gotton before from the previous vendor. That they last much longer. They very seldom, that they don't start tearing up as quickly so that the, they say that when you have school bus tires starting to shred on the edges, the retread starts shredding and stuff, that, that you'll have parents calling, complaining, that, hey, the tires on my child's school bus look terrible. And said we don't, we just don't get those calls, and so in short he was very full of praise for the product produced by Dave Howell. It is a fact too that Dave Howell Tires is a local employer and contributes to our local economy and I think that's worth considering. I have had more than a few friends who submitted bids with ECUA contracts over the years and I've never stood up and made a speech like this before for any of them nor have I ever done it for Mr. Howell before. But in this particular instance when the dollar figures are this close, I think the points that, the points that I have raised have, have impressed me at any rate. [I]n short, this is a very close bid and I think there's some legitimate reasons for considering going with Mr. Howell's bid [which] is a better bid even though it's not the lowest. Despite the recommendation of Dr. Walker, the Committee rejected by a 5-2 vote a motion by Dale Perkins to award the retread portion of the contract to Dave Howell. When these comments were made, Dr. Walker was running for a term as County Commissioner. He had accepted a contribution of $300.00 from Dave Howell on August 1, 1999. In addition, Dave Howell made another $250.00 contribution on October 4, 1999. As required by law, all contributions were disclosed by Dr. Walker in his campaign treasurer's reports filed with the local Supervisor of Elections. The first contribution was disclosed by Dr. Walker in a quarterly report filed on October 13, 1999, or before the Committee meeting at which he spoke, while the second was disclosed in a later-filed quarterly report. During his appearance at the meeting, however, Dr. Walker did not disclose either contribution. On October 28, 1999, the Authority met to consider the award of a contract under Bid No. 99-79. At that meeting, Moore, speaking on behalf of the Committee, recommended that the contract for both items be awarded to Eagle. Dave Howell was also present at the meeting and was given an opportunity to make a brief presentation. He described his product (Bandag) as being "superior" to the other proposals, and pointed out that he did retreading for the Escambia County School Board (School Board). In addition, he mentioned the fact that he used a NDI (non-destruct imager) machine for scanning tire casings which would "save money" for the Authority. Finally, he pointed out that he was a local vendor who employed 39 persons, all of whom were residents of Escambia County. At the same meeting, Dr. Walker again spoke on behalf of Dave Howell saying that "Howell Tires has the . . . best bid"; that it would "better . . . to go with Dave Howell tires because I do believe that the tires, the retread tires are a better tire, that will give longer wear, have fewer failures and therefore that we will come out ahead . . . in the long run"; that "I do believe that this is the better contract and part of that comes from talking with Mr. Jerry Watson who . . . said the School Board is absolutely delighted with the retreads from Dave Howell Tires"; and that "Mr. Howell insists that [Eagle's machine] can't be as good as his [NDI machine]." At the Authority meeting, another member produced a letter dated October 26, 1999, drafted by School Board Deputy Superintendent Jerry Watson (Watson), which stated in part that Watson understood that Dave Howell's service to the School Board under an existing contract "has been excellent"; that the firm provided "dependable, quality service"; that Dave Howell "understands that safety is of utmost importance to [the School Board]"; and that he "would recommend the excellent service of Dave Howell Tires." As it turned out, the letter had been solicited from Watson by Dr. Walker at the suggestion of Dave Howell. The letter was read in full at the meeting at the urging of Dr. Walker. Thereafter, the Authority unanimously voted to split the contract and award the new tire business to Eagle and the retread portion of the contract to Dave Howell. A splitting of the contract was permissible under Section 13-2(d) of the Code. Eagle did not send a representative to the Authority meeting believing that after the unanimous vote by the Committee to award Eagle the contract, it had no reason to attend. Had a representative attended, however, he would have been given an opportunity to speak. Eagle later learned in a telephone call from Moore that the retread portion of the contract had been given to Dave Howell. This appeal ensued. In its timely-filed appeal, Eagle contends that the award of the retread part of the contract "was arbitrary, capricious, unlawful, contrary to the Authority's rules and regulations, contrary to the substantial weight of the evidence and applicable [Authority] bidding procedures, deprived [P]etitioner of his substantial rights, and was unconstitutional." More specifically, Petitioner contended that the contract was awarded to Dave Howell "based on improper, irrelevant, incompetent, and highly prejudicial procedures, statements, events, and the personal interest of one or more board members"; that the Authority "improperly applied a 'local preference' standard"; that a board member (Dr. Larry Walker) "improperly, unethically, and in direct violation of his oath of office and state law engaged in extensive ex parse communications, personal contacts, and financial transactions with and in behalf of Howell"; and that Dr. Walker did not disclose the fact that "Howell had paid a substantial sum of money to Walker for the latter's political campaign." More specific findings regarding these contentions are made below. Local vendor preference Section 13-12 of the Code prohibits favoritism for "local bidders" except in the narrowly defined circumstance where a "rapid response time" is needed in the case of a service contract. Bid No. 99-79 did not contain a local preference provision. While the Code does not define the term "local bidders," the evidence supports an inference that it applies to bidders who are located in Escambia County and the immediate area. During the discussions regarding Dave Howell at the Authority's meeting, Dr. Walker referred to Dave Howell as a local vendor, and another member, Dale Perkins, made reference to Dave Howell's local residency, the residency of his work force, and the taxes they presumably paid to Escambia County. A third member, Elvin McCorvey, also indicated that he was "inclined to agree . . . about doing business with the local vendor." In light of the foregoing comments, the Authority's General Counsel, Mr. Kievit, twice explained to the Authority members the local preference policy. Specifically, after two members expressed their desire to keep business "at home," Mr. Kievit cautioned the members against utilizing local vendor preference as a basis for awarding the contract in this instance. Testimony by Authority members at hearing confirms that this advice was accepted and that their decision was based on other criteria, including Dave Howell's "convincing" and uncontradicted presentation; his record of service with the School Board under an existing contract; the assertion that Bandag was a better product; the assertion that most private commercial waste haulers used Bandag tires; and an assertion that over time Dave Howell's NDI machine would save the Authority money. In short, it is fair to conclude that local preference played no role in the members' final votes on the matter. Finally, the member (Perkins) who had unsuccessfully moved that the Committee award the retread portion of the contract to Dave Howell, indicated at that time to the Committee members that his recommendation was not based on the local preference rule. While Petitioner asserts that Dave Howell received special preference as a "local vendor," the more persuasive evidence supports a finding that he did not. Conflict of Interest As noted in earlier findings, Dr. Walker made comments in support of Dave Howell at both the Committee and Authority meetings. This was after Dr. Walker had accepted two contributions totaling $550.00 from Dave Howell for his reelection bid. Except for filing his campaign treasurer's reports with the Supervisor of Elections, Dr. Walker had no other legal or ethical requirement regarding disclosure of contributions. In retrospect, however, Dr. Walker wishes he had done so to avoid any appearance of impropriety. Even so, merely because he had accepted a campaign contribution did not require that Dr. Walker abstain from voting on the contract or prevent him from advocating on behalf of a contributor/constituent. There is no evidence that Dr. Walker received any direct, personal, or financial gain as a result of his vote. Although members have rarely advocated the award of a contract to a particular vendor in prior years, there is no legal or ethical prohibition against a member doing so on behalf of a constituent. There is also no prohibition against a member investigating information about a bidder. In this case, before the contract was awarded, Dr. Walker made inquiry from both Dave Howell and the School Board regarding the quality of the Bandag product; he visited Dave Howell's facility; and he solicited a letter from a School Board representative regarding Dave Howell's service under an existing contract. While he made no similar inquiries regarding Eagle, and in fairness probably should have, Dr. Walker acknowledged that had Eagle contacted him, he would have been happy to meet with a representative of that firm to discuss its product. Finally, the evidence shows that Dr. Walker did not discuss the contract with, or personally solicit the vote of, any other member before the final vote was taken. Dr. Walker, who is the author of a treatise entitled The Florida Municipal Officials Manual, a publication widely used by elected and appointed municipal officials, municipal attorneys, and the Florida League of Cities, had no reason to disbelieve, or question the reliability of, the information he obtained from Dave Howell. Indeed, he simply relied on Dave Howell's representations in advocating on that vendor's behalf. Appearance by Dave Howell at the Authority Meeting As noted earlier, Dave Howell spoke at the Authority meeting on October 28, 1999. Eagle had no representative at that meeting. Eagle suggests that it was inappropriate for a vendor to appear at the meeting at which the contract was awarded; alternatively, Eagle suggests that the Authority should have given notice that vendors could appear and make presentations in support of their proposals. The evidence shows that while it is not a normal occurrence, several times a year a disappointed vendor will appear before the Authority and make a presentation. The Authority's policy is to allow any member of the public to speak, including disappointed bidders. Also, there is no requirement that the Authority inform all vendors that a disappointed bidder intends to make a presentation, or that the successful bidder should make an appearance on behalf of its proposal. Had an Eagle representative appeared at the meeting, he would have been allowed to give a presentation. The Authority violated no rule, Code provision, or statute by allowing Dave Howell to speak at the Authority meeting. Indeed, it is not unusual for a bidder to provide further information regarding its product to the Committee and Authority before a vote is taken, and such action by a bidder does not constitute a modification to its bid package. Was the Final Decision Arbitrary? In its proposed order, Eagle contends that there was no difference in quality between the retreads offered by either vendor. Thus, it argues that any assertion by the Authority members that their votes were based on Dave Howell providing a better quality product is simply a ruse for circumventing the local preference rule, and therefore its decision was not based on adequate facts. The record establishes that both products were of similar quality and reliability and met all specifications. Assertions by Dave Howell that his product was better, that his NDI machine was superior to his competitor's machine and would save the Authority money in the long run, and that virtually all private waste haulers used the Bandag product were not accurate. Indeed, the products were similar in quality, Eagle had a NOT scanning machine which was just as good as the NDI machine and would achieve the same savings, if any, and the amount of use of Bandag tires by other waste haulers was embellished. Moreover, School Board Deputy Superintendent Watson's assertion that Dave Howell provided a better product than did the predecessor contract holder is somewhat puzzling since the prior vendor also used the same Bandag retread. All of these representations were accepted by the Authority, primarily because they were unrebutted, and they formed the factual basis for awarding the contract to Dave Howell. Indeed, at hearing, each Authority member acknowledged that he had no independent knowledge of these matters and accepted without further question the representations made by Dave Howell and Walker. Because the Authority mistakenly relied on invalid assumptions, or representations which were either embellished or incorrect, as a basis for awarding the contract to someone other than the lowest bidder, its decision was not based on facts or logic and was therefore arbitrary.
Conclusions For Petitioner: John C. Barrett, Esquire 5 Calle Traviesa, Pensacola Beach Pensacola Beach, Florida 32561 For Respondent: Robert W. Kievit, Esquire Michael J. Stebbins, Esquire Kievit, Kelly & Odom 15 West Main Street Pensacola, Florida 32501
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that respondent Department of Highway Safety and Motor Vehicles enter a final order granting the application of petitioner Naughton Chrysler- Plymouth and Dodge, Inc., for a motor vehicle dealer license. RECOMMENDED this 18th day of September, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1985.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by R. Bruce McKibben, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioners’ Notice of Dismissal, a copy of which is attached, and incorporated by reference, in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Respondent, North Tampa Chrysler Jeep Dodge, Inc., shall be granted a dealer license for the sales and service of Chrysler passenger cars and light trucks manufactured by Chrysler Group Carco, LLC (CHRY); for the sales and service of Dodge passenger cars and light trucks manufactured by Chrysler Group Carco, LLC (DODG), and for Filed July 23, 2012 9:06 AM Division of Administrative Hearings the sales and service of Jeep passenger cars and light trucks manufactured by Chrysler Group Carco, LLC (JEEP) at 10909 North Florida Avenue, Tampa (Hillsborough County), Florida 33612. Upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules the Department is authorized to issue said dealer license. DONE AND ORDERED this {9 day of July, 2012, in Tallahassee, Leon County, Florida. uJie Baker, Chief ureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this } | day of July, 2012. ) ca _Vtnariok wees, Lrragek Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jde Copies furnished: John W. Forehand, Esquire Kurkin Forehand Brandes, LLP Suite 1B 800 North Calhoun Street Tallahassee, Florida 32303 James Browne North Tampa Chrysler Jeep Dodge, Inc. 10909 North Florida Avenue Tampa, Florida 33612 Phil R. Langley Chrysler Motors, LLC 10300 Boggy Creek Road Orlando, Florida 32824 J. Andrew Bertron, Esquire Nelson, Mullins, Riley and Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
The Issue Should Petitioner impose a fine on Respondent in the amount of $1,902.00 for operating an over-weight motor vehicle on a bridge with weight limitations?
Findings Of Fact On January 6, 1995, a truck owned by Martin Leasing was operating on State Road 520 in Orange and Brevard Counties, Florida. The driver was William Edward Bednar. The truck was approximately 70 feet long, with five axles. On that date, Officer Charles Hunter of the Motor Carrier Compliance Division of the Department of Transportation observed Mr. Bednar cross a low weight limit bridge leaving Orange County and entering Brevard County, Florida. The weight limit for the bridge was 30,000 pounds. Officer Hunter stopped the Martin Leasing vehicle and had it weighed on nearby scales that were certified. The truck weighed 68,040 pounds. For that reason, Petitioner cited Respondent, pursuant to Section 316.545(3), Florida Statutes. As a consequence, a monetary assessment was levied against Respondent in the amount of $1,902.00, which represents a penalty related to the 38,040 pounds overweight times $.05 per pound. Volume 3: Bridge Load Rating, Permitting and Posting Manual, Florida Department of Transportation, states, in pertinent part: Weight limits to be shown on the posting signs at a bridge site, shall represent the gross vehicular weight (GVW) in tons for a maximum of three truck types. However, no more than one or two truck symbols may be needed. A graphic depiction of the general weight limit sign is shown on the Roadway and Traffic Design Standard Index No. 17357. The three truck types are as follows: Single unit trucks. (SU) Combination trucks with a single trailer. (C) Combination trucks with two trailers or a single unit truck with one trailer. (ST5) The single unit truck case will be the lowest operating rating for two axle (SU2), three axle (SU3) and four axle (SU4) trucks. This single unit truck will be represented on the weight limit sign by a two axle single unit truck silhouette. The operating rating GVW may exceed the legal limit GVW of one or more truck types. In this case, these specific truck types would be excluded when establishing the lowest permissible operating rating. For example if the operating rating for the SU2 truck was 16,300 kg (18 tons) then the SU2 truck would not be considered for posting since the legal limit for the SU2 truck is 15,400 kg (15 tons). The combination truck with one trailer will be the lowest permissible operating rating for three axle (C3), four axle (C4) and five axle (C5) trucks. This combination truck will be represented on the weight limit sign by a three axle combination truck silhouette (one trailer). The operating rating GVW may exceed the legal limit GVW of one or more truck types. In this case, these specific truck types would be excluded when establishing the lowest per- missible operating rating. For example if the operating rating for the C3 truck was 26,300 kg (29 tons), then the C3 truck would not be considered for posting since the legal limit for the C3 truck is 25,400 kg (28 tons). The combination truck with two trailers or a straight truck with one trailer will be governed by the operating rating for the single unit truck with one trailer (ST5). This combination truck will be represented on the weight limit sign by a silhouette of a two axle single unit truck pulling a two axle trailer. Based upon the above-referenced manual, a combination truck with one trailer, such as the Martin Leasing truck, would be depicted on the posting signs for weight limits by a silhouette on the sign that shows a three axle combination truck with one trailer, whether the truck operating on the road has three axles, four axles, or five axles. Rule 14-15.010, Florida Administrative Code, adopts the Manual on Uniform Traffic Control Devices, published by the United States Department of Transportation, Federal Highway Administration, 1988 Edition. That manual prescribes the size and character of the weight limit signs posted by Petitioner. Included on the sign are the three silhouettes that are referred to in the Petitioner's Manual for Bridge Load Rating, Permitting and Posting. In particular, the federal sign depicts a silhouette for the combination truck with one trailer, which silhouette has three axles. In addition, Petitioner publishes a booklet through its Motor Carrier Compliance Office. That booklet is entitled: Florida Department of Transportation Trucking Manual. It is a handbook or guide for operating trucks in Florida. It refers to the low-limit roads and bridges in Florida and to the portrayal of those bridges on low-limit signs that have been described in the prior manuals. The trucking manual states: Low Limit Roads and Bridges Due to age, condition, or design, some roads and bridges in Florida cannot carry the load limits allowed in this manual. Signs detailing these lower limits have been posted on such roads and bridges. . . . The maximum allowable weight is listed, in tons, beside the silhouette for each of the 3 classes of vehicles. The SINGLE-UNIT TRUCK silhouette includes all straight trucks, cranes and other single- unit special mobile equipment regardless of the number of axles. The TRUCK TRACTOR SEMI-TRAILER silhouette includes all truck tractor combinations regard- less of the number of axles. The SINGLE-UNIT TRUCK WITH ONE TRAILER in- cludes all MAXI-CUBE and TANDEM TRAILER combin- ations regardless of the number of axles. Please watch carefully for all load limit signs and obey them. The trucking manual gives an example of a weight limit sign with the truck silhouettes, to include the combination truck with one trailer, described in the trucking manual as a truck tractor semi-trailer. Under that description the Martin Leasing truck would be a tractor semi-trailer. Again, the trucking manual refers to the silhouette for a combination truck with one trailer to regulate any truck tractor combination in that configuration, regardless of the number of axles. Notwithstanding Petitioner's intention to depict a combination truck and single trailer with three axles on its signs, to inform truckers operating that configuration, whatever numbers of axles are found on the operating truck, Respondent takes the view that the failure to depict a five-axle truck and single trailer combination means that Respondent need not comply with the posted weight limits. That is an unreasonable interpretation. Respondent, through its driver, erroneously takes the view that the weight limits for the bridge in question depicted by signs with silhouettes showing single-unit trucks limited to 22,000 pounds; combination trucks with a single trailer limited to 30,000 pounds; and combination trucks with two trailers or a straight truck with one trailer limited to 36,000 pounds would not place Respondent on notice that its 68,040-pound truck, which was a combination with one trailer, should not have crossed the bridge, whatever the number of axles. Adequate warning was provided to Mr. Bednar concerning the approach to the low weight limit bridge. A weight limit sign, including the aforementioned information, was located nine miles prior to the bridge. The nine-mile sign was located immediately before the junction of State Road 520 and State Road 528. Mr. Bednar could have exited on State Road 528. A weight limit sign indicating "weight limit restriction ahead" was located closer to the bridge. A weight limit sign depicting the information and describing the opportunity for last road exit from State Road 520, before entering the bridge, was provided. The last exit sign referred to the junction between State Road 520 and County Road 532. Mr. Bednar could have existed County Road 532. Another weight limit sign was found within two miles of the bridge. The bridge itself was posted with the weight limits that have been described.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which imposes a $1,902.00 assessment against Respondent. DONE AND ENTERED this 20th day of February, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3897 The following discussion is given concerning Petitioner's proposed findings of fact. Paragraphs 1-11 are subordinate to facts found. Paragraphs 12 and 13 are not necessary to the resolution of the dispute. COPIES FURNISHED: Murray M. Wadsworth, Jr. Assistant General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Tommy Martin Post Office Box 624 Yulee, FL 32097 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450
The Issue The issue in this case is whether Petitioners' notice of intent to establish a supplemental motor vehicle dealership was effective to commence the statutory protest period, which must be completed as a necessary condition of licensure.
Findings Of Fact By letter dated September 13, 2002, Petitioner BMW of North America, LLC ("BMW NA") notified Respondent Department Of Highway Safety and Motor Vehicles (the "Department") that Petitioner Pompano Imports, Inc., d/b/a Vista Motors ("Vista"), intended to relocate its dealership, where BMW cars and light trucks were being sold and serviced, from 700 North Federal Highway in Pompano Beach ("Source Site") to 4401 West Sample Road in Coconut Creek ("Target Site").1 BMW NA and Vista took the position that, pursuant to Section 320.642(5), Florida Statutes,2 the proposed reopening of the "relocatee-dealership"3 at the Target Site should not be considered subject to competing dealers' administrative protests. Pursuant to Section 320.642(1)(d), Florida Statutes, the Department caused BMW NA's September 13, 2002, notice of relocation to be published in the September 27, 2002, edition of the Florida Administrative Weekly. On September 27, 2002, also in accordance with Section 320.642(1)(d), the Department mailed copies of BMW NA's September 13, 2002, notice of relocation to all existing BMW passenger car dealers and BMW light truck dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. Within two weeks, however, the Department mailed letters to these same dealers explaining that the proposed reopening of Vista's relocatee- dealership at the Target Site would not be a "protestable" event after all. A little more than seven months later, by letter dated May 5, 2003, BMW NA notified the Department that Vista planned to establish an additional or "supplemental" dealership for selling and servicing BMW cars and light trucks at 744 North Federal Highway in Pompano Beach (the "Supplemental Site"), a parcel which is contiguous to the Source Site where the relocatee-dealership then remained open for business, the previously announced relocation having not yet taken place. As required by statute, the Department not only caused a notice to be published in the May 16, 2003, edition of the Florida Administrative Weekly regarding this putative supplemental dealership, but also it mailed copies of BMW NA's May 5, 2003, notice to all existing BMW passenger car dealers and BMW light truck dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. No dealer timely protested Vista's intended opening of a supplemental dealership at the Supplemental Site. Generally speaking, after the Department has received notice from a licensee or applicant regarding the latter's intent either to establish an additional dealership or to relocate an existing dealership, and after such notice has been duly published in accordance with Section 320.642, Florida Statutes, the Department routinely enters a final order authorizing the issuance of a license for the proposed additional or relocated dealership upon the applicant's satisfaction of all other requirements for licensure, unless a timely protest is filed, in which case final agency action must be taken pursuant to Chapter 120.4 In this case, however, by letter dated July 10, 2003, the Department informed BMW NA and Vista of its decision that because the putative relocatee- dealership was still doing business at the Source Site, and because the Supplemental Site was immediately adjacent to the Source Site, the proposed supplemental dealership would be deemed an "expansion" of the putative relocatee-dealership, as opposed to an "additional" dealership. Based on this determination, the Department concluded in its July 10, 2003, correspondence that: (1) a license would not be issued for the expansion of Vista's dealership into the Supplemental Site; (2) the opening of the dealership that Vista proposed to establish at the Target Site, which would come into being as the putative relocatee-dealership expanded, could not be considered exempt from protest, for no "relocation" would be occurring; and (3) notice and an opportunity to protest would need to be provided with respect to the Target Site before a license for an additional dealership at that location could be issued. BMW NA and Vista each requested a hearing to challenge the Department's findings and conclusions, initiating, respectively, DOAH Case Nos. 03-2969 and 03-2970. These cases were subsequently consolidated. On September 30, 2003, before the final hearing in the consolidated proceeding, the Department, BMW NA, and Vista entered into a settlement agreement. Upon being advised of the settlement, the presiding administrative law judge (not the undersigned) closed DOAH's files in Case Nos. 03-2969 and 03-2970 and relinquished jurisdiction to the Department. Pursuant to the referenced settlement agreement, the Department, on October 7, 2003, approved Vista's application to relocate its BMW passenger car and BMW light truck dealership from the Source Site to the Target Site, as had been proposed in the September 13, 2002, notice of relocation. Vista's motor vehicle dealer license was, accordingly, modified to permit Vista to conduct dealership activities with regard to BMW passenger cars and BMW light trucks at the Target Site. This modification effectively "de-licensed" Vista as a BMW dealer at the Source Site. On October 7, 2003, Vista stopped selling and servicing BMW passenger cars and BMW light trucks at the Source Site. (Vista continued to operate a preexisting, separately licensed Volkswagen dealership at the Source Site.) On October 8, 2003, Vista started selling and servicing BMW passenger cars and BMW light trucks at the Target Site. (Vista continued to operate a preexisting, separately licensed MINI dealership at the Target Site.) Also pursuant to the settlement agreement referenced above, the Department notified BMW NA and Vista, by letter dated October 15, 2003, of the following relevant findings:5 Pursuant to Rule 15C-7.004(3)(d)2, Florida Administrative Code, the Department views [Vista's] proposed additional motor vehicle BMW dealership . . . at [the Supplemental Site] as an expansion of Vista Motors' existing licensed BMW dealership at [the Source Site.] Therefore, the [proposed project at the Supplemental Site] . . . , [being] in fact merely an expansion of Vista Motors' existing location [i.e. the Source Site], [is] not [an additional BMW dealership] subject to Section 320.642, Florida Statutes. [T]hus BMW is essentially intending to remain open at its existing . . . location [meaning, apparently, the Source Site] at the same time it is relocating to [the Target Site]. Based on the foregoing findings, the Department concluded as follows:6 [The exemption from protest afforded under Section 320.642(5), Florida Statutes, cannot apply where the putative relocatee- dealership of] Vista Motors . . . remain[s] open at the [Source Site] as a franchise BMW dealer . . . [while] at the same time [Vista] move[s] [the putative relocatee- dealership] to the [Target Site]. Therefore, Vista may not be issued a license as a franchise BMW dealer at the [Supplemental Site], until it relocates to [the Target Site] and thereafter publishes a new notification of an additional dealership for the [Supplemental Site], and those proceedings, if any, are concluded in favor of the additional dealership. (Emphasis added.) At first blush, the October 15, 2003, notice seems curiously oblivious to the fact that the Department had already approved Vista's relocation to the Target Site and modified Vista's license accordingly. Indeed, there appears to be some tension between the "facts" found in the notice and the actual facts on the ground. For example, while the notice refers to Vista's existing licensed BMW dealership at the Source Site, the undisputed fact is that Vista was not licensed to operate a BMW dealership at the Source Site as of October 7, 2003. Thus, if the Department believed, as a literal reading of the notice suggests, that Vista's intent on October 15, 2003, was to expand an existing BMW dealership at the Source Site, then it would be reasonable to wonder why the Department did not conclude that Vista was operating at the Source Site without a license. Conclusion 1 seems likewise to be at odds with what had transpired in fact. On the one hand, the Department concludes that Vista has remained open at the Source Site, which it cannot do and also claim, as it had done, the Section 320.642(5) exemption. Yet, on the other hand, the Department had, in fact, previously authorized Vista to operate a BMW dealership at the Target Site under the auspices of the very exemption that the October 15, 2003, notice concludes cannot apply because Vista is still open (according to the "findings") at the Source Site. To properly understand the October 15, 2003, notice, it is necessary to focus on the word "thereafter" in Conclusion 2(b). Clearly, the timing of the "new notification" is critical. The Department is saying that, where a dealer has previously given notice of its intent to relocate an existing dealership, taking advantage of Section 320.642(5) to exempt the reopening of such relocatee-dealership at the target site, if the dealer now wants to establish a "supplemental" dealership at the source site7 (hereafter, such a dealership will be called a "backfill dealership"8) then the relocatee-dealership must truly be relocated before effective notice of the proposed backfill dealership may be published. Under this policy,9 hereafter called the "Exempt Relocation/Backfill Policy," it is appropriate for the Department, in determining retrospectively10 whether the notice of the proposed "supplemental" dealership was effective, to look at the facts as of the date of the notice. In this case, the subject notice was given to the Department on May 5, 2003, and published in the Florida Administrative Weekly on May 16, 2003. With these points in mind, it becomes apparent that the "findings" in the October 15, 2003, notice, which seem inconsistent with the facts on the ground, actually refer to the state of affairs in May 2003. Once the findings in the October 15, 2003, notice are understood as being retrospective in nature, the notice begins to make sense. What the Department found was that Vista had not relocated its BMW dealership from the Source Site to the Target Site as of May 5, 2003, when notice of the proposed backfill dealership was furnished to the Department. As a result, because Vista had previously sought the protection of Section 320.642(5) for the reopening of its relocatee-dealership, the May 5, 2003, notice respecting the backfill dealership was premature and ineffective. To remedy the problem of premature notice, the Department would afford Vista a second chance to give effective notice in the proper sequence, after the relocation of its BMW dealership from the Source Site to the Target Site had taken place.11 It is important to note that, in the October 15, 2003, notice, the Department neither needed to make nor made a finding, one way or the other, as to whether Vista's putative relocatee-dealership has, in fact, moved from the Source Site to the Target Site.12 Thus, such a determination should not be made in and through this proceeding, but, rather, by the Department (preliminarily) either (a) at the time BMW NA gives notice to the Department, again, of the proposed backfill dealership at Supplemental Site or (b) after publication of such notice in the Florida Administrative Weekly but before a license for the proposed backfill dealership is issued or denied.13 It is also not necessary, and indeed would be inappropriate, to determine in this case what action, if any, the Department should take if it subsequently determines that Vista's putative relocatee- dealership has not in fact relocated from the Source Site to the Target Site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order providing that Vista shall be issued a license to operate a BMW dealership at 744 North Federal Highway only if: (a) prior to the time notice is given to the Department pursuant to Section 320.642, Florida Statutes, regarding the proposed dealership, Vista has actually relocated the dealership that existed at 700 North Federal Highway to 4401 West Sample Road in Coconut Creek; any protest filed against the proposed dealership is resolved in Petitioners' favor; and (c) all other legal requirements for licensure are met. DONE AND ENTERED this 15th day of April, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 15th day of April, 2004.
Findings Of Fact National Freight is a trucking business. It currently uses 123 trailers in Florida which are longer than 48 feet, the length limitation set by Section 316.515, Florida Statutes. These trailers may operate in Florida only with a special permit issued by DOT pursuant to Section 316.550, Florida Statutes. In 1981, when National Freight began operations in Florida, a special permit was required from DOT only if the tractor-trailer combination exceeded 55 feet in length. At that time, DOT's practice was to routinely issue special permits to tractor-trailer combinations which exceeded 55 feet in length but did not exceed 65 feet in length. DOT issued special permits to a number of National Freight's vehicles in 1981 based upon a showing that the tractor-trailer combination exceeded 55 feet but not 65 feet in length. These permits were renewed in 1982 based upon this same showing. In 1983, National Freight was orally notified by DOT that a special permit would no longer be required for an overlength tractor-trailer combination, only for an overlength trailer, and that an overlength trailer must have been registered and operating in Florida prior to December 1, 1982, to be eligible for a special permit. DOT never promulgated any rule or prepared any written guidelines specifying these permit requirements. DOT expressed its policy of using Section 316.515(3)(b), Florida Statutes, as a guide for issuing special permits under Section 316.550. While DOT expressed this policy at the formal hearing, two weeks prior to the formal hearing, a contrary policy was expressed by Jack Roberts in his deposition. Specifically, Roberts stated at that time that Section 316.515(3)(b) removed DOT's discretion under Section 316.550. Under DOT's interpretation of Section 316.515(3)(b), as expressed at formal hearing, only those vehicles which were registered and operating in Florida as of December 1, 1982, should be issued special permits under Section 316.550. On September 16, 1983, after discussing the new permitting requirements by telephone with Billy Berry, DOT's State Highway Permits Engineer, Hal Kaplan sent DOT a list of additional overlength trailers National Freight had intended to use in Florida. On September 19, 1983, National Freight supplied DOT with documentation that a number of these trailers had been ordered from the manufacturer in October, 1982, prior to the December, 1982, permitting deadline. One hundred one (101) trailers were identified on the list supplied by National Freight, although one vehicle serial number was incorrect and that trailer was stricken from the list by DOT. Of the remaining 100 trailers, 53 had been ordered new from the manufacturer in October, 1982, and 47 were registered in New Jersey ,and used between several different states, including some use in Florida. At all material times, Florida and New Jersey were both party to a "Multistate Reciprocity Agreement." Among other things, this Agreement exempts contracting jurisdictions from vehicle registration requirements in other participating jurisdictions when those vehicles are used in any type of interstate operation. On September 28 or 29, 1983, Hal Kaplan and Billy Berry met to discuss the documentation supplied by National Freight and the permitting status of the 100 additional overlength trailers. DOT was advised at that time that none of the 100 additional trailers were yet available for use in Florida and that National Freight thus could not have met the permitting deadline with respect to any of those trailers. National Freight was told that DOT would consider the documentation showing that the trailers had been ordered prior to the permitting deadline for intended use in Florida in determining whether it would issue permits for the additional trailers. In October, 1983, DOT issued special permits for all 100 additional trailers. These permits were subsequently renewed in October, 1984. After the permits were issued, it cost National Freight approximately $60,000 to bring the 100 additional trailers into Florida. National Freight would not have incurred this expense had the trailers been denied Florida permits, and it acted in reliance upon DOT's issuance of the permits, reasonably assuming from DOT's action that the vehicles were permittable. On January 16, 1985, in response to an inquiry concerning the validity of National Freight's special permits, DOT notified National Freight by Certified Mail that permits had been issued to the additional overlength trailers "with the understanding that they would be operating and registered in Florida prior to July 1, 1983." The letter requested National Freight to supply proof of registration prior to that date and stated that the permits were subject to cancellation if proof of timely registration was not received. When National Freight was unable to supply the requested information, DOT initiated an administrative proceeding to revoke the 100 permits. After a formal administrative hearing, a recommended order was entered recommending against revocation. DOT later dismissed the proceeding as moot. (DOAH Case No. 85-1362) By letters dated September 19 and October 15, 1985, National Freight applied for a second renewal of its special permits. In its October letter, National Freight acknowledged that 100 of the permits sought to be renewed were for trailers which had not been registered and operating in Florida before December 1, 1982, but had been offered for use in Florida before that date. The letter further stated that the 100 permits had been originally issued in 1983 based upon proof that the permitted vehicles had been ordered before December 1, 1982, and that the permits had been routinely renewed in 1984. Renewal for 1985 was requested on this same basis. DOT denied renewal of the 100 permits by letter dated October 16, 1985. The sole reason for denial was National Freight's failure to provide proof that the 100 trailers for which these permits are sought were registered and operating in Florida on or before December 1, 1982. Each of the 100 trailers, when used in a tractor- trailer combination, is over 55 feet but less than 65 feet in length. Each would thus have qualified for a special permit under DOT's permitting practice prior to 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation grant National Freight's application for renewal of special permits for the operation of the 100 tractor- trailers identified therein. DONE AND ENTERED this 26th day of May, 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0374 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 this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, National Freight, Inc. Petitioner's proposed findings of fact 1-16 are adopted in substance as modified in Findings of Fact 1-16. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Transportation Respondent failed to file proposed findings of fact. COPIES FURNISHED: Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 W. Douglas Hall, Esquire Nancy G. Linnan, Esquire Carlton, Fields, Ward, Emmanuel, Smith Cutler and Kent, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Charles G. Gardner, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
