The Issue Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess a penalty of $1,250 pursuant to Section 316.545, Florida Statutes, regulating operation of a commercial vehicle on a highway in the State of Florida?
Findings Of Fact On June 27, 1991, Sergeant Tommy Jackson, observed a dump truck traveling eastward on 65C in Gadsden County, Florida. The Sergeant stopped the truck which did not have a tag. The driver of the truck, which did not have a name on it, was asked for the registration. The driver could not produce the registration. Sergeant Jackson called Officer Bennie Lee York, Jr., to come assist him in weighing the dump truck on portable scales. The vehicle weighed 60,000 pounds. The vehicle's serial number was checked through the Florida Division of Motor Vehicle's computer which determined the vehicle had no Florida tag or registration. Sergeant Jackson and Officer York went to the job site to which the truck was bound to verify the tag and registration of the vehicle. A Georgia registration and incorrect tag was presented. Sergeant Jackson went to his nearby home to call and verify the registration with the Georgia authorities in Atlanta, Georgia. Georgia reported no record of a tag for the vehicle in the State of Georgia. Sergeant Jackson returned to the job site and advised the job foreman that the State of Georgia did not report the vehicle as being registered in Georgia. About two hours later, Mr. Kinard of General Development brought a registration that matched the truck serial number. However, it was for a non-apportioned Georgia commercial tag. Officer York advised Mr. Kinard that an apportioned International Registration Plan tag or a Florida Commercial registration was required to operate a commercial vehicle in Florida. Officer York issued a load report to General Development assessing a penalty for being 25,000 pounds over the legal limit in the State of Florida of 35,000 for a commercial vehicle. The amount of the penalty was $1,250.00, or 5 cents for every pound of vehicle weight over 35,000 pounds. The Respondent admitted the violation, however, the Respondent's representative indicated in his plea for mitigation that the driver had taken the truck without authorization. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finalizing assessment of the $1,250.00 penalty assessed against General Development pursuant to Section 316.545, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February 1992. STEPHEN F. DEAN 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 26th day of February 1992. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Campbell, Secretary General Development Post Office Box 654 Quincy, Florida 32351 Ben G. Watts Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether two policy statements issued by Respondent, TL-10 and RS/TL 14-18, are unadopted rules, as defined in section 120.52(20), Florida Statutes, that violate section 120.54(1)(a), Florida Statutes.3/
Findings Of Fact The Parties Petitioner is a co-trustee of the Sparkhill Trust (the "Trust"), which was created in July 2009. Opinicus Sentinel, LLC ("Opinicus Sentinel") currently is a co-trustee of the Trust, and has been a trustee of the Trust since its creation. Barbara Williams is the manager of Opinicus Sentinel, and has served in that capacity since its creation.8/ Petitioner was appointed as a trustee of the Trust on October 11, 2016.9/ The Trust owns a 2001 Porsche 996/911 Turbo motor vehicle (hereinafter, "Vehicle"). Solely for purposes of this proceeding,10/ the Vehicle Identification Number ("VIN") of the Vehicle is WP0ZZZ99Z1S682830, as alleged in the Amended Petition. As of the final hearing, the Vehicle was located in Germany. During all times relevant to this proceeding, the Vehicle was located in a foreign country. Respondent is the state agency responsible for, among other things, implementing and administering chapter 319, Florida Statutes, governing the issuance of certificates of title for motor vehicles. See § 319.17, Fla. Stat. Background and Events Giving Rise to This Proceeding On or about September 30, 2014, Opinicus Sentinel——at that time, the sole trustee of the Trust——submitted an application consisting of completed Form 8204011/ and supporting documentation to the Lee County Tax Collector ("Tax Collector")12/ on behalf of the Trust, requesting issuance of a certificate of title for the Vehicle in the name of the Trust. The application included a letter from a motor vehicle dealer in London, Ontario, Canada, stating that the dealer had inspected the Vehicle and that the Vehicle's VIN is WP0ZZZ99Z1S682830. On or about October 22, 2014, the Tax Collector sent a letter to Ms. Williams, as manager of Opinicus Sentinel, stating that the application for certificate of title could not be processed "because all used vehicles coming into Florida from a foreign country must have the Vehicle Identification Number verified by a Division of Motorist Services Compliance Examiner." When asked for further explanation, the Tax Collector responded by electronic mail ("email"): The Lee County Tax Collector is a Constitutional Office that provides the services of the Department of Highway Safety and Motor Vehicles (DHSMV). As such, we are bound by both statutory and department procedural guidance. Procedures often are entitled Technical Advisories. The technical advisory relied upon by this office indicates that all used vehicles coming into Florida from a foreign country must have the VIN verified by a Division of Motorist Services Compliance Examiner as referenced in TL-10 in effect on the date the correspondence was drafted. Email from Tax Collector to Barbara Williams, dated October 27, 2014 (emphasis added). This email directed Ms. Williams to contact Respondent if the trustee wished to challenge the denial of the application for certificate of title for the Vehicle. On November 3, 2014, Ms. Williams contacted Respondent, asserting that the Tax Collector's denial of the application for a certificate of title violated section 319.23(3)(a)2, Florida Statutes. Also on that date, Ms. Williams filed a Petition for Administrative Hearing with Respondent on behalf of Opinicus Sentinel, challenging TL-10 as an invalid and unadopted rule pursuant to section 120.56(4).13/ On November 24, 2014, Respondent sent a letter to Ms. Williams, refusing to issue the requested certificate of title. The letter stated: After researching the issue identified in your letter, the Department stands by the decision made by . . . [the Lee County Tax Collector]. Section 319.23(a)(2), Florida Statutes, states that, '[a]n appropriate departmental form evidencing that a physical examination has been made of the motor vehicle by the owner and by a duly constituted law enforcement officer in any state, a licensed motor vehicle dealer, a license inspector as provided by s. 320.58, or a notary public commissioned by this state and that the vehicle identification number shown on such form is identical to the vehicle identification number shown on the motor vehicle. Letter from Respondent to Barbara Williams, dated November 24, 2014 (emphasis added). The letter further stated: However, section 319.23(11), Florida Statutes, states that, '[t]he Department shall use security procedures, processes, and materials in the preparation and issuance of each certificate of title to prohibit to the extent possible a person's ability to alter, counterfeit, duplicate, or modify the certificate of title.' In the case at bar, the Department is choosing to implement the language found in 319.23(11) to ensure that the certificate of title is issued correctly. The Department has the authority to require VIN verifications on vehicles entering the state of Florida from a foreign country before a title can be issued. In subsequent correspondence to Ms. Williams, dated December 18, 2014, Respondent stated: I can only again point you to s. 319.23(11). Since April of 2000 the Department's policy is to require all used vehicles coming into Florida from a foreign country to have the VIN verified by a Motor Vehicle Field Office Compliance Examiner prior to being titled. * * * I have included a copy of the Department's Technical Advisory, TL 14-18, which explains the Department's policy in depth.[14/] On December 18, 2014, Respondent referred Opinicus Sentinel's Petition for Administrative Hearing to DOAH. The case was assigned DOAH Case No. 14-6005. On March 3, 2015, Opinicus Sentinel withdrew the petition, and the DOAH case file for Case No. 14-6005 was closed. Notwithstanding that Case No. 14-6005 was pending at DOAH, on February 25, 2015, Respondent sent Ms. Williams a letter dismissing the previously-filed petition for administrative hearing with leave to file an amended petition. The letter also asserted an additional basis15/ for Respondent's denial of the certificate of title for the Vehicle, specifically: Because the vehicle to be titled is not currently in Florida, clearly the vehicle will not be operated on the roads of Florida. Accordingly, the vehicle cannot be registered in Florida and the titling provisions of Chapter 319, Fla. Stat., do not apply. Therefore, the application for title you submitted to the Lee County Tax Collector pursuant to section 319.23, Fla. Stat. will not be approved. While DOAH Case No. 14-6005 was pending, Stephen J. Williams, as beneficiary of the Trust, filed a Petition for Administrative Hearing challenging both TL-10 and RS/TL 14-18 as unadopted and invalid rules pursuant to section 120.56(4). That case was assigned DOAH Case No. 15-0484 and ultimately was dismissed by Final Order dated March 25, 2015.16/ As previously noted, on October 11, 2016, Petitioner was appointed as a co-trustee of the Trust. On October 17, 2016, Petitioner, as a trustee of the Trust, initiated this proceeding by filing a Petition for Administrative Hearing, again challenging both TL-10 and RS/TL 14-18 as unadopted and invalid rules. As noted above, the scope of this proceeding subsequently was narrowed to eliminate the challenge to the substantive invalidity of TL-10 and RS/TL 14-18, so that the sole issue in this proceeding is whether TL-10 and RS/TL 14-18 are unadopted rules that violate section 120.54(1)(a). The Challenged Statements: TL-10 and RS/TL 14-18 TL-10, identified by the Tax Collector as the original basis for denial of issuance of the certification of title for the Vehicle, went into effect on April 30, 2014. The portion of TL-10 pertinent to this proceeding states: IV. MISCELLANEOUS INFORMATION * * * B. Vehicle identification number (VIN) verifications are to be completed by the applicant. * * * 2. VIN verification may be done by one of the following: * * * c. Florida Division of Motorist Services (DMS) Compliance Examiner, DMS or tax collector employees. * * * NOTE: All USED vehicles coming into Florida from a foreign country, including dealer transactions, MUST have the VIN verified by a DMS Compliance Examiner. Technical Advisory RS/TL 14-18 is titled "Motor Vehicles Coming Into Florida from a Foreign Country." It states in pertinent part: All used vehicles coming into Florida from a foreign country (including dealer transactions) must have the vehicle identification number verified by a Motor Vehicle Field Office Compliance Examiner prior to being titled. * * * The Regional Motor Vehicle Field Office staff will perform an inspection of the vehicle that includes verification of the public VIN, confidential VIN or secondary VIN, manufacturer’s label or letterhead letter that states compliance with US vehicle standards, computer checks of NMVTIS/NICB data-bases, and a review of documentation showing vehicle clearance through US Customs (if applicable). Copies of these documents, including a copy of the completed form HSMV 84044, will be maintained in the regional office. The VIN verification will be completed by the compliance examiner on a form HSMV 84044, in lieu of a form HSMV 82040 or HSMV 82042. The compliance examiner will give the customer the original required documentation (including the original complete form HSMV 84044). The customer must submit all documentation to a tax collector’s office or license plate agency in order for him/her to apply for a Florida Certificate of Title. The undisputed evidence establishes that neither TL-10 nor RS/TL 14-18 have been adopted as rules pursuant to the procedures prescribed in section 120.54. Respondent did not present any evidence showing that rulemaking was not practicable or feasible. Respondent's Position Respondent admitted, in its Amended Responses to Requests to Admissions served on Petitioner on November 21, 2016, that TL-10 and RS/TL 14-18 are intended to be, and are, of general application; that TL-10 and RS/TL 14-18 implement, interpret, or prescribe law or policy and/or describe the procedure or practice requirements of Respondent; and that TL-10 and RS/TL 14-18 have not been, and are not published in the Florida Administrative Code. Additionally, Respondent acknowledges that neither TL-10 nor RS/TL 14-18 have been adopted as rules. Respondent takes the position that Petitioner lacks standing to challenge TL-10 and RS/TL 14-18 as unadopted rules. Specifically, Respondent asserts that Petitioner has not suffered a "real or immediate injury in fact" for purposes of having standing because although the Tax Collector and Respondent referred the Trust to TL-10 and RS/TL 14-18 as grounds for denial of the certificate of title, they were not the "ultimate grounds" on which the Trust was denied a certificate of title. On this basis, Respondent asserts that it did not apply TL-10 or RS/TL 14-18 to Petitioner, so Petitioner did not suffer injury as a result of application of these statements. Respondent further asserts that because Petitioner cannot meet the requirements in section 319.23 to be entitled to issuance of a certificate of title for the Vehicle, Petitioner's claimed injury in this proceeding is speculative and hypothetical. To this point, Respondent argues that Petitioner's alleged injury in this proceeding is speculative because the Trust has not satisfied the requirements of section 319.23 for purposes of being entitled to issuance of a certificate of title. Specifically, Respondent argues that because the Vehicle is not physically present in the state of Florida, it is not being operated on the roads of Florida, and because it is not being operated on the roads of Florida, it is not required to be registered or to obtain a certificate of title——and, indeed, cannot be registered and a certificate of title issued until it is physically present in Florida. Accordingly, Respondent reasons, until the Vehicle is physically present in Florida and thus subject to registration and licensure requirements, TL-10 and RS/TL 14-18 were not, and cannot be, applied to determine whether the certificate of title for the Vehicle should be issued. Also on this point, Respondent argues that Petitioner's alleged injury is speculative because Petitioner did not meet the requirement in section 319.23 that a physical examination of the Vehicle be made by the owner and a motor vehicle dealer licensed in the state of Florida. Respondent further asserts that Petitioner's alleged interest does not fall within the zone of interest of this proceeding. Specifically, Respondent argues that because the Vehicle is located in a foreign country, Petitioner is unable to establish that the Vehicle must be registered and a certificate of title issued in Florida. Respondent concludes: Because Petitioner cannot meet the burden of establishing that the motor vehicle in question is required to be licensed and registered in Florida, and because he failed to satisfy the application requirements of section 319.23(3)(a)(2), he cannot meet the burden of establishing that any interest in obtaining a certificate of title for the vehicle in question is within the 'zone of interests' to be protected and regulated.
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
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by James H. Peterson, III, Administrative Law Judge of the Division of Administrative Hearings, 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. Said Order Closing File was predicated upon Respondent’s Notice of Voluntary Dismissal, filed April 26, 2010. Accordingly, it is hereby ORDERED and that this case is DISMISSED. Filed May 7, 2010 8:00 AM Division of Administrative Hearings. DONE AND ORDERED this L 4, of May, in Tallahassee, Leon County, Florida. atl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this 4h day of May, 2010. nite lies. yak. Dealer ia araes 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. CAF:vlg Copies furnished: Laurie Michele Chess, Esquire Jones Walker 601 Brickell Key Drive, Suite 500 Miami, Florida 33131 Joseph H. Smolinsky, Esquire Weil, Gotshal, and Manges, LLP 767 Fifth Avenue New York, New York 10153 J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 J. Martin Hayes, Esquire Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 James H. Peterson, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section
The Issue The issue for consideration in this case is whether Petitioner should be licensed as an independent motor vehicle dealer in Florida.
Findings Of Fact By stipulation of fact, the parties agreed: Petitioner applied for a motor vehicle dealer's license for a dealership to be operated at 2401 Central Avenue in St. Petersburg, Florida. The application was denied by the Department because it appears the applicant has no experience in the motor vehicle business and, in fact, applied for the license to allow an individual by the name of Lloyd Blocker to operate and have continued involvement in the motor vehicle business. Petitioner was aware at the time of his application that Mr. Blocker had been denied a motor vehicle license in Florida in February 1994 and had been convicted of a felony in Alaska involving the unlawful rolling back of odometers in motor vehicles. In addition, Mr. Rinier was aware that the Department of Motor Vehicles would not allow Mr. Blocker to hold a license to deal in motor vehicles in Florida. Mr. Rinier and Mr. Blocker have an ongoing business dealing with the sale of motor vehicles. Mr. Rinier knows and knew at all times pertinent hereto that Mr. Blocker could not operate such a business on his own. The Department of Motor Vehicles contends that Mr. Blocker cannot operate or be involved in any facet of the motor vehicle business in any capacity. If Mr. Rinier were to provide written assurances that Mr. Blocker would not be involved in any way with a business operated under a license if issued, it would issue a license, assuming Mr. Rinier were otherwise qualified for licensure. Mr. Rinier is unwilling to provide that assurance in writing. However, Petitioner contends his sole desire is to make money from the operation of a dealership. If the license were issued, ownership of the business would be and remain in the Petitioner's name. He had already paid lease costs and all other costs relating to the business, and he will not operate it without Mr. Blocker's participation in some form. The present relationship with Mr. Blocker involves sale of the buildings where the dealership would operate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Highway Safety and Motor Vehicles enter a Final Order denying a motor vehicle dealer license to Petitioner, Harvey G. Rinier. DONE AND ENTERED this 10th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John L. Waller, Esquire John L. Waller, P.A. 467 Second Avenue, North _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1997. St. Petersburg, Florida 33701 Michael J. Alderman, Esquire Gabrielle L. A. Taylor, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building Room B-439 Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Conclusions This matter came before the Department upon the Order Closing File and Relinquishing Jurisdiction entered by E. Gary Early, an Administrative Law Judge of the Division of Administrative Hearings and the Parties’ Settlement Stipulation. Having reviewed the Order and Stipulation, and being otherwise fully advised in the premises, it is ORDERED AND ADJUDGED: L. That the Settlement Stipulation (copy attached) is hereby and adopted and incorporated into this final order. 2. That Respondent’s motor vehicle dealer license VI-1008040 was revoked effective April 17, 2012. Filed April 23, 2012 7:38 AM Division of Administrative Hearings 4 DONE AND ORDERED this go day of April, 2012, in Tallahassee, Leon County, Florida. a M4 4 we Birrayiee 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 Filed in the official records of the Division of Motorist Services this a »_ day of April, 2012. Nalini Vinayak, Dealer Hcense Administrator Copies Furnished: Jonathon Glugover, Esquire Glugover Law and Mediation Post Office Box 2613 Daytona Beach, florida 32115 James K. Fisher, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Neil Kirkman Building, Room A-430 Tallahassee, Florida 32399 E. Gary Early Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399
