The Issue This is a case in which the Petitioner seeks a determination that a policy of the Respondent is a rule, and that such policy/rule is invalid because it has not been adopted pursuant to the procedures set forth at Section 120.54, Florida Statutes. The challenged rule was described in the petition as a policy to the effect that . . . a man's middle name can be changed to his wife's maiden name on his driver's license only by court order and not by presenting a copy of his marriage certificate. However, a female may add her husband's name on her driver's license as a surname by presenting a copy of her marriage certificate. . . . At hearing it was clarified that the policy to which the challenge is directed is the policy set forth in the last paragraph of page 7-3 of the Florida Examiner's Manual. At the hearing both parties presented testimony and offered exhibits which were received in evidence. The parties were originally allowed until December 17, 1988, within which to file their proposed final orders. At the request of the parties that deadline was extended until December 22, 1988. Both parties filed proposed final orders containing proposed findings of fact and conclusions of law. All findings proposed by the parties are specifically addressed in the appendix to this final order.
Findings Of Fact Based on the evidence received at the hearing in this case, I make the following findings of fact. Petitioner's birth name, which name he used until the time of his marriage, was Joseph Charles Sexton. On August 8, 1988, Petitioner was married to Beth-Anne (NMN) Thye. Since the marriage, the Petitioner has used the name Joseph Thye Sexton and his wife has used the name Beth-Anne Thye Sexton. The marriage certificate of the Petitioner and his wife does not state what name either of them intends to use after the marriage. Following the marriage, Petitioner's wife was permitted to change her name on her driver license from Beth-Anne Thye to Beth-Anne Thye Sexton, using only her marriage certificate. Following the marriage, Petitioner' attempted to change the name on his driver license from. Joseph Charles Sexton to Joseph Thye Sexton, using only his marriage certificate, but was told by employees of the Respondent that he would need a court order to make such a change. The Respondent has published a manual with the title Florida Examiner's Manual. The manual has been distributed by the Respondent and is used by the Respondent's employees in the fulfillment of their duties related to the issuance of driver licenses. The manual contains the current policies of the Respondent. The portions of the manual quoted hereinafter have not been adopted as rules pursuant to the rulemaking procedures of Section 120.54, Florida Statues. The Florida Examiner's Manual, at page 7-7, under the subheading Applicant With Name Established On Florida Computer Record, reads as follows: Name changes can be proven by the following documentation: Females: *Marriage certificate, *Court order, *Out-of-state license, *Naturalization papers, *Divorce decree (Dissolution of marriage), *Names already established on record, or --May go back to previous last name, such as a maiden name, without Court Order, etc., if name is already on record. *Two forms of identification in the same name as listed on page 7-1. M *Naturalization paper, *Court Order, or *Two forms of identification in the came name as listed on page 7-1. Page 7-3 of the Florida Examiner's Manual, under the subheading Hyphenated Names, includes the 2. Hyphenated first, second, and/or last names can be used. *Maiden-married or married-maiden names of female applicants can be hyphenated at the request of the female applicant without court order. Identification proving maiden and married names must be presented. *Male applicants may not assume the maiden name of their spouses or use a hyphenated combination of the husband's last name and the wife's maiden name unless authorized by Court Order (pursuant to a May 7, 1984 Departmental legal opinion.) The Respondent's rationale for the policies quoted in paragraphs 5 and 6, above, is that it is "customary" for a woman to take her husband's surname upon marriage, but it is not "customary" for a man to take his wife's maiden name upon marriage. Those policies promote administrative convenience, because they are consistent with established custom. It is very important for the Respondent to establish and maintain accurate information as to the identity of its licensees, in order to protect the business community, law enforcement officers, the motoring public and the public at large. To this end the Respondent operates an extensive fraud prevention program. If a male driver changes his name and is issued a new driver license in his new name, the Respondent does not lose track of that driver's prior driver record. Rather, an inquiry under the new name will also access information under the prior name.
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
Findings Of Fact Respondent, Rolando Mirabet, was first licensed as a commercial driving instructor in 1981. His current license will expire February 1, 1983. On March 26, 1982, a cameraman for WTVJ, Channel 4, Miami, while posing as a driver's license applicant at the Central Driver License Office was approached by Respondent. The cameraman/applicant told Respondent he was looking for the answers to the driver's license examination. They entered an automobile, Respondent showed the cameraman/applicant papers which he represented to be test questions from the actual driver's license examination, and the cameraman/applicant told Respondent he needed to take the questions and answers home with him to study. Respondent sold the questionnaire to the cameraman/applicant for twenty-five dollars ($25). Other employees of WTVJ filmed the encounter between Respondent and the cameraman/applicant from inside a surveillance van. The document sold by the Respondent to the WTVJ cameraman/applicant contains fifty-three questions with multiple-choice, alternate answers provided for each question and with one of the alternate answers for each question being marked as the correct answer. The document is in Spanish. Applicants for a driver's license are required, among other things, to pass a written examination concerning rules and regulations for driving in the State of Florida. Petitioner uses four different written examinations for testing applicants. During the hearing, one of Petitioner's witnesses compared the questionnaire sold by the Respondent to the cameraman/applicant and one of the Spanish versions of Petitioner's examination. Although the witness identified five questions as being the same on both documents, he also recognized some of the questions on the document which Respondent sold as being questions from the other versions of Petitioner's Spanish examination. A close review of the actual examination admitted in evidence and the document sold by Respondent reveals, however, that all twenty questions on the actual examination are found verbatim in the document sold by Respondent, and the alternate, multiple-choice answers to each question are also verbatim. Respondent admits giving the questions and answers to driver's license applicants. Respondent denies any knowledge of the rules and regulations enacted by Petitioner. Petitioner publishes a driver's handbook. That handbook contains a number of questions that are general in nature. No answers to those questions are suggested, and a reader needs to understand the entire book in order to answer those questions. Only one sample question with multiple-choice answers is given in order to illustrate to applicants the type of question which the applicant will encounter on the licensing examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate card of Respondent, Rolando Mirabet. RECOMMENDED this 27th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
The Issue Whether Petitioner properly denied Respondent's application for the renewal of his Commercial Driving School License No. 1719, and Teaching Certificate No. 4531.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, Petitioner's proposed memorandum and the entire record compiled herein, the following relevant facts are found. 2/ Respondent, Joshua Logan, during times material, was the owner/operator of Logan's Streamline Driving School in West Palm Beach, Florida, beginning in 1970. (Tr. 52) Respondent's most recent Commercial Driving School License (No. 1719) and Teaching Certificate (No. 4531) both expired on June 1, 1981. (Tr. 6) On May 18, 1981, Respondent applied to the Department of Highway Safety and Motor Vehicles (herein Department) for renewal of the above referred license and Teaching Certificate. Prior thereto, on or about May 14, 1981, the Department, through its staff, had instructed Respondent that he should contact the Department's agent, J. F. Hayes, at the West Palm Beach Drivers' License office, to arrange for the inspection of his school facilities before his license and certificate could be renewed. On approximately June 1, 1981, Respondent, via a telephone communique with John F. Hayes, District Supervisor, Palm Beach District, Region IV, requested that his renewal applications be held in abeyance pending completion of remodeling of his school building. The Department, pursuant to that communique, held Respondent's renewal applications in abeyance and considered them to be incomplete. Respondent was not told by agents of Petitioner that he could continue to engage in the business of conducting a driving school when his license/certificate expired. The Department issued an order dated August 27, 1981, prohibiting the Respondent from operating as a commercial driving instructor since his school license and teaching certificate both expired on June 1, 1981. On September 29, 1981, Levi Dixon completed an application for a license to conduct a commercial driving school under the name Logan's Streamline Driving School. Attached to that application were receipts, lesson plan forms and other contractual agreements which had been previously utilized by the Respondent. Respondent never renewed his request for an inspection with Supervisor Hayes. Don H. Keirn, Chief, Driver Improvement Bureau for Petitioner, regulates programs related to problem drivers. Chief Keirn has been the bureau chief for driver improvement for approximately twelve (12) years and also is in charge of regulating driving schools. As part of his duties, he inspects vehicles, making certain that they are properly equipped with dual controls, pass safety inspections and bear signs legible to the driving public. Rule 15A- 2.07, Florida Administrative Code. Chief Keirn reviewed the application to change the ownership of the Respondent's driving school during October of 1981. Chief Keirn had received no advance notification from Respondent of any plans (of Respondent) to change the ownership of the school. John F. Hayes, District Supervisor of the Palm Beach District (Region IV) makes periodic checks of commercial driving schools in the Palm Beach district. During the summer of 1981, Respondent advised Supervisor Hayes that, on April 14, 1980, he gave a behind-the-wheel driving lesson to Alzora Washington, in her own vehicle, rather than in a dual-control vehicle approved by the Department, which lesson resulted in Ms. Washington's car crashing through a fence and into a neighbor's home. (Testimony of Respondent, Ms. Washington; Tr. 18, 19, 38 and Petitioner's Exhibit No. 1) Respondent caused to be placed, in a local weekly newspaper, an advertisement offering driving instructions during October and November, 1981. (Petitioner's Composite Exhibit 5) Also, on November 10, 1981, Respondent gave instructions to Geraldine Wilder White in preparation for her to take the written portion of the driver's license exam to obtain a restricted driver's license. Ms. White paid Respondent a $40.00 fee for the driving instruction. (See Petitioner's Exhibit 4; Tr. 20- 24, 40-48 and Composite Exhibit 5) Sometime during the period in which Respondent requested Petitioner to postpone the inspection of his school, Petitioner learned of Respondent's actions as relates to his giving a driving lesson to Ms. Washington on April 14, 1980. Respondent, Joshua A. Logan, is a 56-year-old male who has custody of his three (3) children. Respondent is employed full time as a professional teacher by the Office of Community Mental Health. Respondent has had no prior charges brought against him by the Petitioner. Nor has he been previously charged with violations of any of the Department's rules. 3/ Respondent was therefore of the opinion that by advising Supervisor Hayes of the accident in which he was involved with Ms. Washington, Petitioner would place him on probation for giving a driving lesson in an unapproved vehicle. Respondent executed an answer to a civil suit initiated by counsel for Ms. Washington as a result of the automobile accident referred to hereinabove. Respondent also filed a counter-claim to Ms. Washington's claim and admits to having made several mistakes in both the answer and the counter-claim respecting damages and claims for such damages. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department deny Respondent's application for renewal of his school license Number 1719 and Teaching Certificate Number 4531. RECOMMENDED this 25th day of May, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982.
The Issue The issues in this case are whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment; violated Florida Administrative Code Rule 61J2-2.027(2), by failing to disclose material information in her application; and, if so, what, if any, penalty is appropriate. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules adopted in the Florida Administrative Code in effect on the date of this Order.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate broker pursuant to license number 0421942. The last license issued to Respondent was as a broker t/a Action First Realty, 7622 Praver Court, Jacksonville, Florida 32217. On January 9, 1984, Respondent applied for a license as a real estate salesperson. On February 11, 1993, Respondent applied for a license as a real estate broker. On each application, Respondent signed a sworn affidavit that all of her answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . In relevant part, question six on the sales license asked Respondent whether she had ever been arrested or charged with the commission of an offense against the laws of any municipality or state without regard to whether she was convicted. Question nine on the broker application asked Respondent whether she had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no" to both questions. In each case, Petitioner relied on the accuracy of the application and issued a license to Respondent. On November 7, 1978, Respondent was adjudicated guilty of cashing a worthless check in the amount of $5.00. Respondent wrote the check to Carvel Ice Cream for a birthday cake for her daughter's birthday. Respondent was in the process of moving, and the notice of insufficient funds was not delivered to her. Respondent went to court and paid the $5.00 check and the court costs. The judge characterized the charge as frivolous and was perturbed that the charge consumed time in his court. On October 30, 1980, adjudication was withheld on the charge of driving with a suspended license. Respondent attended driving school. The offense does not appear on Respondent's Florida driving record for her entire driving history. Respondent did not willfully misstate a material fact on either application. Respondent testified under oath that she did not consider either offense to be a crime and did not try to lie about either offense. Her testimony was credible and persuasive. Respondent answered "no" to questions six and nine on her applications in the good-faith belief that the offenses were immaterial and not the type of offenses addressed in either question. When Petitioner's investigator interviewed Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), finding Respondent guilty of violating Rule 61J2-2.027(2), and imposing no penalty. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999. COPIES FURNISHED: Geoffrey Kirk, Esquire Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801-1900 Barbara Lynn Clarke 7622 Praver Court Jacksonville, Florida 32217 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent Agency is a Florida-licensed (Class "A" license number A88- 00297 private investigative agency. Respondent Foreman is the owner of the Agency. He is a Florida-licensed (Class "C" license number C00-02486) private investigator. He has been licensed for approximately the past 20 years. At no time during the period of his licensure has the Department taken any disciplinary action against him. At around 10:00 a.m. on the morning of September 30, 1994, Foreman interrupted his work schedule to drive a male tenant living in an apartment that he owned (hereinafter referred to as the "Tenant") to the Henderson Mental Health Clinic, an outpatient mental health facility located in Broward County, Florida. The Tenant needed to receive treatment at the clinic. After parking his vehicle, Foreman escorted the Tenant to the reception area of the facility. Foreman was wearing a gun belt and a holster. A loaded firearm was encased in the holster. It was a warm day and Foreman did not have on a jacket. 2/ Consequently, the holstered firearm was in plain view. At the time, Foreman had a Department-issued Class "W" Concealed Weapon or Firearm License, but he did not have a Class "G" Statewide Firearm Permit. 3/ Detective Joel Maney of the Fort Lauderdale Police Department was working a uniformed off-duty security detail at Henderson Mental Health Clinic that morning. From his position behind the reception counter, Detective Maney observed Foreman enter the reception area with the Tenant and noticed that Foreman was carrying a firearm. Not wanting to cause a disturbance inside the facility, Detective Maney did not immediately confront Foreman. He did, however, monitor Foreman's activity. After informing the receptionist that the Tenant had arrived and was waiting to be seen, Foreman left the facility. Detective Maney followed Foreman outside. As Foreman was walking on the sidewalk toward his vehicle, Detective Maney approached him and asked for identification. Foreman responded to the request by stating that he was a detective/investigator and that he did not have time to talk inasmuch as he was in the middle of an investigation. Eventually, Foreman produced his Florida driver license, his Class "C" Private Investigator License, and his Class "W" Concealed Weapon or Firearm License for Detective Maney. He also showed Detective Maney a five-pointed, star-shaped badge. In the center of the badge was a replica of the Great Seal of the State of Florida. The words, "Special Investigator Foreman Investigative," were inscribed around the seal. When Detective Maney first saw the badge, he thought it was a Broward County deputy sheriff's badge because of its shape and because it bore the Great Seal of the State of Florida. Unlike a Broward County deputy sheriff's badge, however, Foreman's badge did not have a map of Florida superimposed on the seal. Moreover, the written inscription on the badge was different than that found on a Broward County deputy sheriff's badge. Throughout the period that he has been licensed, Foreman has used this badge as a means of identifying himself in connection with the performance of his duties as a private investigator.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding the evidence sufficient to establish that Respondent Foreman committed the violations alleged in Counts II and II of the Amended Administrative Complaint, disciplining Respondent Foreman him for having committed these violations by imposing an administrative fine in the amount of $500.00, and (3) dismissing the remaining counts of the Amended Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 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 12th day of October, 1995.
