Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Todd P. Resavage, an Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Parties’ Motion to Relinquish Jurisdiction based on a Settlement Stipulation entered into between the parties, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly it is FOUND and ORDERED as follows: 1. That Respondent shall pay an administrative fine in the amount of two hundred fifty dollars ($250.00) per count for a total of one thousand five hundred dollars ($1,500.00) to be paid on or before September 30, 2013. All payments are to be made by returning a copy of the order with payment to: Filed August 29, 2013 2:08 PM Division of Administrative Hearings Department of Highway Safety and Motor Vehicles Office of General Counsel 2900 Apalachee Parkway, Room A432, MS-61 Tallahassee, Florida 32399 2. If Respondent pays the amount specified in paragraph one above within the specified time the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay the amount specified in paragraph one, on the day following the due date specified in paragraph one, Respondent’s motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. 3: If after suspension Respondent pays the amount specified in paragraph one above within 30 days following the date of suspension, its motor vehicle dealer license will immediately be reinstated without further penalties or sanctions. 4. If Respondent fails to pay the amount due by the 30" day following the date of suspension, on the 31" day following the date of suspension Respondent’s motor vehicle dealer license shall be revoked by the Department without further notice. If the Department suspends or revokes Respondent’s motor vehicle dealer license for non-payment as specified in paragraphs two and three above, said suspension or revocation shall be without recourse to the Respondent and Respondent hereby expressly waives any right to appeal or otherwise contest the suspension and revocation. DONE AND ORDERED this a | day of August, 2013, at Tallahassee. Leon County, Florida. Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 i) Filed in the official records of the Division of Motorist Services this 2” day of August, 2013. ane , t leisnd ta Nalini Vinayak, Dealer Yicens 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 Rule 9.110, Rules of Appellate Procedure. JB:jde Copies furnished: Cathy Coleman Regional Administrator Dealer License Section Teresa Williams, Esquire Williams and Trese 12 Southeast 7" Street, Suite 703 Ft. Lauderdale, Florida 33301
Findings Of Fact The Respondent Hernandez is a certified commercial driving school instructor employed by Easy Method Auto Driving School. The Respondent is the owner of a 1980 AMC motor vehicle, serial number AOC435C103790, which he uses to instruct students in the operation of a motor vehicle, in order to obtain a drivers license. The Respondent was issued commercial driving school registration number 1888-2, Petitioner's Exhibit No. 1, for the aforesaid vehicle which expired on March 1, 1983. Due to the Respondent's failure to insure that necessary insurance documentation was forwarded to the Petitioner Department in a timely fashion, the Respondent did not receive a new vehicle registration card until March 8, 1983. Between the time that his old commercial driving school vehicle registration expired and the receipt of the new vehicle registration on March 8, 1983, the Respondent used his vehicle to teach driving to students. On March 4, 1983, Driver License Examiner Maritza Contaris gave a driving test to one of Respondent's students in Respondent's AMC vehicle. Upon examining the commercial driving school vehicle registration, Petitioner's Exhibit No. 1, displayed in the car, she noticed that the expiration date appeared to have been altered. She brought this to the attention of another Driver License Examiner, Elizabeth Lopez. When Elizabeth Lopez examined the registration, she observed that the date appeared to have been altered and in turn, brought this to the attention of her supervisor, Mary Lou Karner. Mary Lou Karner requested the Respondent to step into her office where she confronted him with the apparently altered registration. Gail Shelow, another Driver License Examiner, was a witness to this conversation. The Respondent admitted that he knew the expiration date of the registration had been altered and stated that this had occurred because he had not yet received a new certificate from the Petitioner. An examination of Petitioner's Exhibit No. 1 clearly reveals that the registration has been altered by changing the expiration date from March 1, 1983 to March 11, 1983, by adding a "l". The Respondent altered his commercial driving school registration card which was required to be kept in the corner of the windshield of the Respondent's vehicle in order to continue using said vehicle pending receipt of a new vehicle registration. The Respondent's assertion that the registration must have been altered by driving school personnel, is not credible in light of the Respondent's admission to Karner and Shelow when confronted with the alteration, that he knew the registration had been altered and that this had been done because a new registration had not yet arrived. The alternation by the Respondent of the registration card, because of a lack of adequate insurance coverage, demonstrates a lack of good character on the part of the Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a Final Order revoking the commercial driving instructor's certificate of the Respondent Jorge Hernandez. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of September, 1983. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Jorge Hernandez 1234-13th Street Miami Beach, Florida 33139 Paul Rowell, Esquire General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Robert A. Butterworth Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1983.
The Issue The issues in this case concern the question of whether Respondent is subject to the payment of a $2,078 fine for violation of Section 316.545, Florida Statutes. That statutory provision relates to operation of a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On April 9, 1990, a commercial vehicle operated by Respondent, as carrier, was stopped and inspected by Petitioner's inspector Deborah Charlene Andrews. This inspection took place in Jackson County, Florida. The commercial vehicle operated by Bobby Charles Alphin was weighed. It was determined that the gross vehicle weight was 76,560 pounds. Before entering Florida the commercial vehicle in question had been issued a fuel use trip permit effective April 8, 1990 through April 18, 1990. By contrast the commercial vehicle did not have either an apportioned, 10-day or single-trip vehicle registration which would allow it to operate in Florida on April 9, 1990. A copy of the fuel use emergency trip permit referred to before is found as Petitioner's Exhibit No. 1, admitted into evidence. A copy of the apportioned vehicle registration and identification cab card for the vehicle may be found as Petitioner's Exhibit No. 2, admitted into evidence. It does not reflect registration in Florida in the apportionment. Florida records do not reveal that a 10-day temporary International Registration Plan (I.R.P.) trip registration had been issued or a single trip permit issued registering the commercial vehicle in question. In the absence of such a registration allowing the trip in Florida, the inspector issued a trip permit registration upon the payment of a $30.00 fee as referred to in Petitioner's Exhibit No. 4, admitted into evidence. This exhibit is a copy of the I.R.P. trip permit. The trip permit that was issued allowed operation in Florida for 10 days. A copy of the load report and field receipt executed by the inspector may be found as Petitioner's Exhibit No. 3, admitted into evidence, which reflects the gross vehicle weight and the fact that this exceeded the legal weight of 35,000 pounds and the assessment a $.05 per pound fine for the weight above the legal weight. That fine is $2,078 for being overweight in the amount of 41,560 pounds. Again that overweight amount is derived in subtracting the allowed weight of 35,000 pounds from the gross vehicle weight of 76,560 pounds.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which fines the Respondent in the amount of $2,078 for violation of Section 316.545, Florida Statutes. DONE and ENTERED this 12th day of March, 1991, 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 12th day of March, 1991. APPENDIX The facts as proposed by the Petitioner are subordinate to fact found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Philip R. Polachek, General Manager Little Donkey Enterprises, Inc. Post Office Box 822 Estacada, OR 97023 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether or not the overweight fine and fee for an International Registration Plan (IRP) Trip Permit in the total amount of $1,700.00 assessed Brandywine Auto Sales, Inc. by the Department of Transportation was correct under the provisions of Sections 316.545 and 320.0715 F.S.
Findings Of Fact On March 17, 1990 Officer David Spencer of the Department of Transportation's Weights Enforcement Division stopped a 1986 GMC "lowboy" trailer at the weight station on SR 9 (I-95) in Yulee, Nassau County, Florida. The vehicle had been proceeding north in the northbound lanes approximately one mile before entering Georgia. When stopped, the GMC trailer was loaded with a Warner & Swasey grade- all, which is heavy machinery, an earth mover. When stopped, the vehicle displayed a Maryland "dealer" tag on the window, accompanied by a State of Maryland registration certificate for Brandywine Auto Sales, Inc., as a dealer. When weighed, the vehicle/load weighed in at 68,400 pounds. The Respondent was allowed 35,000 pounds as a legal weight pursuant to Section 316.545(2)(b) F.S., but the agency assessed five cents per pound of excess weight (68,400 - 35,000 = 33,400 pounds), totalling $1,670.00. The fine, plus a $30.00 statutory fee for an IRP Trip Permit and Temporary Fuel Use Permit was paid to the Department of Transportation (DOT) via Western Union, and the vehicle was issued an IRP Trip Permit and Temporary Fuel Use Permit so that it could complete its trip. The fine/citation was protested by the Respondent, Brandywine Companies, which purports to be a parent company of Brandywine Auto Sales, Inc. Brandywine Auto Sales, Inc. is the holder of the Maryland dealer tag. The protest was twice denied by the DOT Commercial Vehicle Review Board before the dispute was referred to the Division of Administrative Hearings. Jack Pelham is Bureau Chief of the Division of Motor Vehicles of the Florida Department of Highway Safety and Motor Vehicles. In his official capacity, Mr. Pelham is responsible, in part, for oversight of motor vehicle registration in the state of Florida. According to Mr. Pelham's testimony, his agency considers a dealer tag to be sufficient to permit the hauling of automobiles and trucks, but insufficient to authorize hauling heavy equipment such as a grade-all, as was the case here. Based on his agency's interpretation of the reciprocity provisions of Chapter 320 F.S., Mr. Pelham also testified that the Division of Motor Vehicles would still consider Respondent's Maryland dealer tag used for hauling the grade-all in this case to be sufficient compliance with Florida law so as to avoid a fine if there were any competent substantial evidence that Maryland, the state which issued the dealer tag, used its dealer tags to permit the hauling of heavy machinery within its own borders. There was no affirmative demonstration that Maryland's dealer tags permit such heavy duty hauling, and all hearsay evidence admissible for consideration pursuant to Section 120.58(1) F.S. suggests contrariwise.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commercial Vehicle Review Board of the Department of Transportation enter a final order ratifying the correctness of the imposition of the $1,700.00 fine/fee assessed Brandywine Auto Sales, Inc. DONE and ENTERED this 20th day of August, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 August, 1991. APPENDIX The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 5 is rejected as unintelligible. 1-4 and 6-7 are accepted as modified. Respondent's PFOF: None filed COPIES FURNISHED: Rush M. Cox, Jr., Controller Brandywine Companies Routes 301 and 381, Box 68 Brandywine, MD 20613 Charles G. Gardner, Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Case No. 91-3505 APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3505
Findings Of Fact On June 6, 1991 a commercial vehicle owned by the Respondent was operating over a highway in the State of Florida. That highway is Interstate 75 in Hamilton County, Florida. An inspection was made by the Petitioner and it was revealed that the registration available with the vehicle did not pertain to the vehicle. A valid registration of a temporary or permanent nature which was associated with the vehicle was not presented at that time. There being no valid registration for the vehicle a fine in the amount of $1,746.00 was assessed in that the owner was charged $.05 per pound for the amount over 35,000 pounds, subtracted from the gross weight of 69,920 pounds. In explanation at hearing Henry Jernigan who owns Southern Salvage Company, Inc. admitted that the vehicle in question had left Respondent's facility with a Georgia tag that belonged to another truck owned by Respondent. Further Mr. Jernigan admitted that when the Florida officials stopped the truck in question it had the wrong tag displayed. The tag pertaining to another vehicle had been placed on the vehicle in question by mistake. Concerning the appropriate indication of registration on the subject truck, steps necessary to purchase a tag had been started in Colquitt County, Georgia on April 26, 1991. This was followed by money paid to the Georgia Department of Revenue on May 28, 1991 for the IRP which signifies permanent registration but the permanent tag was not received immediately. That is to say confirmation of that permanent registration by officials with the Georgia Department of Revenue had not been made when the vehicle was stopped. Meaning the Respondent had not received a copy of the permanent registration when the vehicle was stopped. The permanent registration was finally received by the Respondent sometime around June 20, 1991.
Recommendation Having considered the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered assessing a fine in the amount of $1,746.00 for this violation. DONE and ENTERED this 10th day of December, 1991, in Tallahassee, Florida. CHARLES C. ADAMS 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 10th day of December, 1991. APPENDIX The following discussion is given concerning the proposed facts of the Petitioner: Paragraph 1 is subordinate to facts found. Paragraph 2 in its first two sentences are hearsay, not available for fact finding. The third sentence is not necessary to the resolution of the dispute. The next sentences are subordinate to facts found. The last two sentences are hearsay and not available for fact finding. Copies furnished to: Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Henry Jernigan Southern Salvage Company, Inc. Route 2, Box 210 Lenox, GA 31637 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issue is whether respondent should have an administrative fine levied against him for allegedly performing repossesions without a Class "E" repossessor license.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On May 15, 1990, Charlotte County deputy sheriff Terry Harbes was dispatched to Maple Leaf Estates in response to a "domestic call". Upon arriving at the subdivision, deputy Harbes found a white male, George Guy, lying on the ground in an incoherent state and bleeding from the face. Guy had been assaulted by respondent, Richard Vee Collier. According to Collier's admission at the scene of the incident, Collier was in the process of repossessing Guy's step van when the assault occurred. Collier further acknowleged that he did not hold a repossessor license issued by petitioner, Department of State, Division of Licensing (Division). This latter admission was confirmed by Division records which show that Collier does not hold a repossessor license, a prerequisite to engaging in the trade of repossessing motor vehicles. Testimony of Arthur D. Morgan, former manager of Time Motor Sales in Charlotte Harbor, Florida, established that Collier worked as an independent contractor for Time Motor Sales during the period from March 23, 1990, through May 15, 1990. During that time period, Collier repossessed nine motor vehicles and was paid fifty dollars per vehicle for his services. It may be reasonably inferred from the evidence that such repossessions occurred as a result of the owners' default in payment for such motor vehicles to the lienholder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 493.319(1)(g), Florida Statutes (1989), and that he pay a $1,000 administrative fine within such a time period as is specified in the final order rendered in this matter. DONE and ENTERED this 29th day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of November, 1990. COPIES FURNISHED: Henri C. Cawthon, Esquire Division of Licensing The Capitol, M.S. 4 Tallahassee, FL 32399-0250 Mr. Richard Vee Collier 2204 Alton Road Port Charlotte, FL 33952
The Issue The issues concern the question of whether the Petitioner is entitled to impose a $1,660.00 assessment against Respondent for operating a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On October 21, 1991, Respondent's commercial vehicle was inspected at the Petitioner's Yulee weight station located on Interstate 95 in Nassau County, Florida. It was discovered that the motor vehicle did not have a Florida registration. Furthermore, the South Carolina registration for the vehicle was not apportioned to allow operation in Florida. As a consequence a penalty was assessed for operating the commercial vehicle in Florida without benefit of an appropriate registration. The actual amount of penalty was $1,660.00 which is reflective of the gross weight of 68,200 pounds at a price of .05 per pound of the amount in excess of 35,000 pounds. Respondent paid the $1,660.00 fine plus the $30 single trip registration fee. This payment was rendered on the date that the commercial vehicle was stopped.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered finding that the $1,660.00 penalty was an appropriate amount to be assessed against the Respondent on October 21, 1991, as envisioned by Section 316.545(2)(b), Florida Statutes, and that the request for refund of that amount be rejected. DONE and ENTERED this 23rd day of June, 1992, in Tallahassee, Florida. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 GayCille Swisher Isley Iron & Metal Company 1691 Lost Mountain Road Powder Springs, GA 30073 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 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 23rd day of June, 1992.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Elizabeth W. McArthur, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's Notice Of Voluntary Dismissal Without Prejudice, 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 that this case is CLOSED. Filed July 5, 2012 12:17 PM Division of Administrative Hearings DONE AND ORDERED this A. day of June, 2012, in Tallahassee, Leon County, > Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motorist Services this QO” day of May, 2012. 9 ) Unie J toe: ok Nalini Vinayak, Dealer Kicense 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: Dwight J. Davis, Esquire King & Spalding, LLP 1180 Peachtree Street Northeast Atlanta, Georgia 30309 Todd R. Legon, Esquire Legon Ponce & Fodiman, P.A. 1111 Brickell Avenue, Suite 2150 Miami, Florida 33131 Mark L. Ornstein, Esquire Kilgore, Pearlman, Stamp, Ornstein & Squires, P.A. Post Office Box 1913 Orlando, Florida 32801 William E. Williams, Esquire Gray Robinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
