The Issue The issue is whether appellant's application for a conditional use permit should be approved.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Appellant, Nostimo, Inc. (appellant, applicant or Nostimo), is the owner of Lots 8, 9, 10 and 11, Block 8, Revised Plat of Clearwater Beach Subdivision, located at 32 Bay Esplanade, Clearwater Beach, Florida. The property is subject to the land use requirements codified in the City of Clearwater Code of Ordinances (code or city code). By application filed on April 25, 1989 appellant sought the issuance of a conditional use permit from appellee, City of Clearwater (City or appellee). If approved, the permit would authorize the sale of beer and wine for off-premises consumption by a Pick Kwik Food Store to be constructed on the property under a lease agreement between appellant and Pick Kwik, Inc. Appellant's property is properly zoned for a retail establishment (CB or Beach Commerical), and it needs no further zoning permits from the City in order to convert the existing structures on the property to a convenience store. Indeed, appellant has already received approval for the construction and operation of the store. However, under subsection 137.024(b) of the city code, appellant is required to obtain a conditional use permit because it intends to engage in the sale of packaged beer and wine for off-premises consumption. In order to obtain such a permit the applicant must satisfy a number of criteria embodied in the code. The parties have stipulated that, with the exception of one standard, all other relevant criteria have been met. The disputed standard requires that "the use shall be compatible with the surrounding area and not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services." It is noted that appellant must secure the necessary land use permit from the City before it can obtain the alcoholic beverage license from the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The application was considered by the Clearwater Planning and Zoning Board (Board) on June 13, 1989 and denied by a 5-0 vote with one member abstaining. As a basis for the denial, the Board adopted a staff report that concluded that "due to the beach area being saturated with this use (sale of alcoholic beverages), public nuisances requiring police action are taxing community services." It further concluded that the proliferation of this activity "has a substantial negative impact on surrounding or adjacent uses or on community facilities and services, specifically police services in handling nuisances related to alcoholic beverage establishments." Members of the public who testified in opposition to the application expressed concern over increased traffic in the area, the glare of lights from a 24 hours per day establishment, and potential problems arising from customers who will consume the beer and wine during the evening hours. In addition, two letters in opposition to the application were considered by the Board. Finally, besides a presentation by applicant's attorney, two witnesses appeared on behalf of the applicant and established that Pick Wick, Inc. provides security services at its stores, if needed, and training for employees to prevent the sale of alcoholic beverages to minors. The subject property is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. The avenue narrows from four to two lanes just south of where the store is to be located. Bay Esplanade is a much shorter street and runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. In general terms, the property is surrounded by mixed uses and include a 7-11 convenience store immediately across the street to the east, motels and rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. Maps received in evidence more definitively depict the nature of the uses surrounding Nostimo's property. In addition to a number of commercial establishments within the immediate area, there are also tennis courts, a parking area, community boat ramp, soccer field, playground and public park. Finally, the area is replete with apartments, rental units and condominiums, including some directly behind the proposed establishment. Although there are presently no active businesses located on the subject property, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on and off premises consumption of alcohol. The applicant contends that the proposed use is compatible with both the property's former use and the present surrounding area, particularly since a 7-11 convenience store directly across the street has been in business selling beer and wine for the last twenty-five years, and there are several restaurants or motels within a block that sell alcoholic beverages. The applicant added that, in all, there are approximately fifty-three active alcoholic beverage licenses within two miles of the proposed convenience store. At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick store and a former employee of the 7-11 store across the street, who recalled that when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6). Two other witnesses testified at final hearing in opposition to the application. One, who is a member of a church that lies a block from the proposed store, pointed out without contradiction that a playground sits next to the church and is used by area young people, many of whom use bicycles as their means of transportation. She was concerned that if more traffic is generated by the store, it would make access to the playground more hazardous and discourage the children from using the facility. The second member of the public is concerned that the store will be incompatible with the surrounding area. This is because much of the neighboring area is made up of public areas, apartments, rental units or condominiums, and he contended an establishment selling alcoholic beverages would be inconsistent with those uses.
The Issue The issue in this case is whether Respondent should be sanctioned for failure to renew his registration as a motor vehicle repair shop for the current year.
Findings Of Fact Pursuant to the Florida Motor Vehicle Repair Act, Sections 559.901 through 559.9221, Florida Statutes, the Department regulates the repair of motor vehicles in this state. Mr. Flowers held a motor vehicle repair shop license issued by the Department which was valid through February 8, 2000. On January 9, 2000, Mr. Flowers was provided with notice that his license was required to be renewed by February 8, 2000. In order to have his license renewed, Mr. Flowers was required to pay a renewal fee of $50.00. He did not pay the renewal fee by the due date. During the period January 9, 2000, through September 21, 2000, in a continuing effort to persuade Mr. Flowers to renew his license, the department sent Mr. Flowers four letters, made three visits to the premises, and contacted the business at least nine times telephonically. Subsequent to his failure to renew his license, Mr. Flowers has continued to operate his vehicle repair facility and has, on at least three occasions, operated his motor vehicle repair shop by working on motor vehicles for compensation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of operating a motor vehicle repair shop without a license on three occasions, imposing a fine of $3,000, and ordering the Respondent to cease and desist engaging in the repair of motor vehicles. DONE AND ENTERED this 22nd day of November, 2000, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 22nd day of November, 2000. COPIES FURNISHED: Howard Flowers Tallahassee Truck Service 3321 Garber Drive Tallahassee, Florida 32303 Harold McLean, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, the Department, was the state agency responsible for the licensing and monitoring of the operation of interstate motor carriers in this state. The Respondent, PAT, was an interstate motor carrier of automobiles operating over the roads of this state. On October 10, 1991, Officer Ralph Vargas, an officer with the Department's Office of Motor Carrier Compliance stopped the Respondent's automobile carrier being operated by an employee of the Respondent in Boynton Beach, Florida, going north on US Highway #1. The stop was a random routine Level III safety inspection. Review of the documents carried by the driver reflected that the driver's driver license and the vehicle registration were in order. However, a review of the outside of the cab revealed that there was no required fuel decal being displayed. The driver showed Officer Vargas the cab card issued by the State of Florida for the fuel decal reflecting a decal had been issued for this vehicle. However, the decal was not displayed on the outside of the vehicle even though Mr. Vargas could see an area where an decal had been affixed. He can not recall whether he felt the area to see if it was sticky and he was unable to determine whether the former decal had been issued by the State of Florida or not. He did not see a CVSA, (Commercial Vehicle Safety Alliance) decal either. As a result of this infraction, Mr. Vargas assessed a penalty in the amount of $50.00 and issued a temporary permit at a cost of $45.00, both of which were paid by the driver at the scene. It is this penalty and permit which the Respondent contests. The pertinent statute in issue here required a vehicle of this kind to have both a cab card and a fuel decal which must be affixed to the vehicle. Mr. Vargas also issued the driver a warning for having an unauthorized passenger, (his son) on board and for not having his log book current. Mr. Hurley contends that just one week prior to this stop, the vehicle and driver were in California where a CVSA inspection was accomplished. While this was being done, Mr. Hurley personally inspected the vehicle to insure that all required decals were affixed. Again, before the truck left New Jersey on the instant trip, he again checked to insure the required decals were there. They were. Because he is aware of the extended time required to get a replacement decal for a vehicle, Mr. Hurley routinely purchases several extra $4.00 cab card and fuel decal sets for his trucks so that if, as here, one is lost or removed, he can, upon notice, get a replacement to the driver overnight. Here, he claims the decal must have been peeled off by someone while the vehicle was on this trip. It is his experience that Florida's decals are easily pulled off and, unlike the decals in some other states, there is no built in voiding process which would void the decal in the event it is stolen. Here, Mr. Hurley claims, the driver did not know the decal was gone. Had he known, he could have called the home office on the truck phone and have it delivered. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein denying Professional Auto Transport, Inc.'s request for a refund of the $50.00 civil penalty and $45.00 permit fee. RECOMMENDED this 12th day of June, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 June, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Richard L. Hurley President Professional Auto Transport, Inc. Box 492 Lakewood, N.J. 08701 Ben G. Watts Secretary Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Petitioner seeks to have the title to a specific motor vehicle cancelled and reissued to himself. The title at issue is currently in the name of John W. Klingerman. The central issue before the Hearing Officer is whether the title at issue was "improperly issued" by the Department so as to require cancellation of the certificate of title pursuant to Section 319.25(1), Florida Statutes. It was clear from the nature of the relief sought by the Petitioner that the disposition of this case might adversely affect the substantial interests of John W. Klingerman, the person to whom the disputed certificate of title is presently issued. Accordingly, an order was issued requiring that Mr. Klingerman be notified of the pendency of this case and of his right to file a petition to intervene in this case. Mr. Klingerman was so notified more than two months prior to the final hearing in this case. Mr. Klingerman did not seek to participate in this case. The only witness at the hearing was the Petitioner. Joint Exhibits 1 and 2 were received in evidence by stipulation of the parties. Petitioner's Exhibits 5 and 10 were received in evidence. Petitioner's Exhibit 9 was received with the caveat that it might later be disregarded by the Hearing Officer if, upon further consideration of the issues, the Hearing Officer determined it was not relevant. The Hearing Officer reserved ruling on the admission into evidence of Petitioner's Exhibits 8 and 12. Petitioner's Exhibits 1, 2, 3, 4, 6, 7 and 13 were rejected, but Petitioner was permitted to proffer them for inclusion in the record as rejected exhibits. Petitioner's Exhibit 11 was withdrawn by Petitioner. Respondent's Exhibit 1 was received in evidence. Rulings on Petitioner's Exhibits 8, 9 and 12 Upon consideration of all of the legal issues in this case, as set forth in the Conclusions of Law hereinafter, it is clear that Petitioner's Exhibits 8 and 12 are irrelevant to the disposition of the issues in this case. Accordingly, the objections to those two exhibits are sustained and both exhibits will be treated as rejected exhibits proffered for inclusion in the record. Upon further consideration, it is also clear that Petitioner's Exhibit 9 is irrelevant to the disposition of the issues in this case. Accordingly, even though Exhibit 9 has been received in evidence, no findings of fact have been based on that exhibit.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony presented at the hearing, I make the following findings of fact: During November of 1986, Chuck's Whiskey Creek Service embarked upon the process of enforcing a mechanic's lien on Petitioner's 1963 Ford Stationwagon, vehicle identification number 3T24F155323 (hereinafter referred to as "Petitioner's vehicle.") The owner of Chuck's Whiskey Creek Service arranged for the paperwork regarding the mechanic's lien to be handled by an agent, Title Clearing Service. Title Clearing Service is operated by John Boesch and Carol Boesch. On November 21, 1986, John Boesch mailed a document titled Notice of Claim of Lien And Proposed Sale of Vehicle to Petitioner at two different addresses. The documents were sent via certified mail. Both of the documents were returned to John Boesch because they were not delivered to the Petitioner. The documents mailed on November 21, 1986, contain all of the information itemized at Section 713.585(1)(a) through (i), Florida Statutes. On December 17, 1986, a notice of sale was published in the Fort Myers News-Press, a newspaper circulated in Lee County, Florida. The notice published in the newspaper read, in its entirety, as follows: LEGAL NOTICE OF SALE Chuck's Whiskey Creek Service, 5371 McGreagor Blvd., Fort Myers, Florida 33907 will hold a private sale on the following vehicle to satisfy lien pursuant to Chapter 713:585 of Florida Statue (sic) on January 5, 1987, at 8 a.m. 1963 Ford SW VIN #3T24F155323 Amount of Lien $2,027.95 (813) 549-0631 Dec. 17 No. 5247 Thereafter, on January 5, 1987, a private sale was conducted at which time John W. Klingerman purchased Petitioner's vehicle from Chuck's Whiskey Creek Service for $200.00. On January 13, 1987, John W. Klingerman applied to the Respondent for issuance of a certificate of title in his name, based on his purchase at the January 5, 1987, sale. On January 30, 1987, the Respondent issued a certificate of title to Petitioner's vehicle described above to John W. Klingerman of 1824 Coronado Road, Ft. Myers, Florida 323901-7008. Title Number 43916166 issued by the Respondent now shows John W. Klingerman as the owner of the 1963 Ford stationwagon bearing vehicle identification number 3T24F155323. The issuance of the certificate of title to John W. Klingerman was in reliance upon the application for certificate of title filed by John W. Klingerman and various supporting documents. The supporting documents included a copy of the certificate of compliance and the report of sale certified by the clerk of the court. Other supporting documents certified by the clerk of the court included copies of the Affidavit of Publication, the Notice Of Claim Of Lien And Proposed Sale of Vehicle, the vehicle repair order, and envelopes reflecting efforts to mail notices to the Petitioner. The Petitioner's vehicle was previously titled in the state of South Carolina.
Recommendation Based upon all of the foregoing, it is recommended that the Department of Highway Safety and Motor Vehicles issue a final order in this case cancelling certificate of title number 43916166 issued to John W. Klingerman and that the Department thereafter notify John W. Klingerman of the cancellation of the certificate as provided in Section 319.25(1), Florida Statutes. DONE and ENTERED this 22nd day of October, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 22nd day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2613 The following are my specific rulings on each of the proposed findings of fact submitted by the parties. The paragraph numbers below correspond to the paragraph numbers of the parties' proposed findings. Rulings on Petitioners Proposed Findings: Paragraphs 1 and 2: Accepted in substance. Paragraph 3: Accepted in substance with exception of vehicle identification number, which is incomplete. Paragraphs 4 and 5: Rejected as constituting argument or conclusions of law, rather than findings of fact. Paragraph 6: First sentence rejected as constituting argument or conclusions of law, rather than findings of fact. Second sentence is rejected as contrary to the greater weight of the evidence. Paragraph 7: First sentence rejected as constituting argument or conclusions of law, rather than findings of fact. Second sentence is accepted in substance, i.e., that publication of the notice was less than 20 days prior to scheduled sale and the newspaper publication contained insufficient information. Paragraph 8: First two sentences are rejected as constituting argument or conclusions of law, rather than findings of fact. Last sentence is rejected as irrelevant and subordinate details. Paragraph 9: First two sentences are rejected as constituting argument or conclusions of law, rather than findings of fact. Last two sentences are rejected as contrary to the greater weight of the evidence. Paragraph 10: Entire paragraph rejected as constituting irrelevant and subordinate details. Paragraph 11: Entire paragraph rejected as primarily constituting argument or conclusions of law rather than findings of fact. To the limited extent this paragraph contains factual matter, it is rejected as irrelevant and subordinate. Rulings on Respondent's Proposed Findings: Paragraph 1: Accepted. Paragraph 2: Accepted with exception of proposed purchase date. Greater weight of the evidence shows purchase date as January 5, 1987. Paragraph 3: Accepted in substance, but with most details omitted as irrelevant or subordinate. Paragraph 4: Rejected as constituting irrelevant and subordinate details. Paragraph 5: Accepted. Paragraphs 6 and 7: Rejected as constituting irrelevant and subordinate details. Paragraph 8: First sentence rejected as not fully consistent with the greater weight of the evidence. Second sentence rejected as argument or conclusions of law, rather than findings of fact. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Department of Highway and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Mr. Ocie C. Allen, Jr. Post Office Box 10616 Tallahassee, Florida 32302 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504
The Issue The issue is whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent operated a motor vehicle repair shop in Melbourne known as A-New-Carb-O- Tronics. The shop has been registered with the Department since 2004 under registration number MV54037. In December 2005, Janet Shea started having problems with the back hatch of her 2001 Pontiac Aztek. The problems were attributed to the body control module (BCM), which is an electronic device that controls the vehicle's lights, door locks, and window motors. Ms. Shea consulted Respondent about the problems she was having with the Aztek because he had previously done repair work on another one of her vehicles. Respondent told Ms. Shea that he could make the necessary repairs to the BCM, and he picked up the vehicle from Ms. Shea's home to perform the repairs. On January 27, 2006, Ms. Shea paid Respondent $900 for the repairs that he claimed to have done to the BCM. Ms. Shea continued to have the same problems with the back hatch after the vehicle was returned to her by Respondent, so she took it back to Respondent for repairs. On February 14, 2006, Ms. Shea paid Respondent an additional $1,200 for repairs that he claimed to have done to the BCM. Ms. Shea continued to have the same problems with the back hatch after the vehicle was returned to her the second time, so she again took it back to Respondent for repairs. On February 18, 2006, while the vehicle was in Respondent's possession, it was involved in an accident that damaged the fuel pump. Respondent charged Ms. Shea $390 to repair the fuel pump. Ms. Shea continued to have the same problems with the back hatch of the vehicle after Respondent returned it to her the third time at the end of April or beginning of May 2006. At that point, Ms. Shea decided to sell the Aztek, but Respondent convinced her to let him take the car again for another evaluation. Respondent told Ms. Shea that the BCM that he installed must have been defective and that he would replace it under his warranty and that it would cost her nothing. On August 2, 2006, after Respondent failed to return the vehicle and refused to return her calls, Ms. Shea filed a stolen vehicle report with the Melbourne Police Department. During the course of the police investigation, Respondent produced two written invoices for repairs that he purportedly performed with Ms. Shea's authority, including charges for repairs to a 1992 Chrysler LeBaron owned by Ms. Shea's friend, Ron Shultz. Ms. Shea was never given these invoices by Respondent. The first invoice, dated July 13, 2006, was for $1,657. It included $343 of charges for repairs to Mr. Shultz's LeBaron. The remainder of the invoice was for repairs that Respondent claimed to have performed on Ms. Shea's Aztek, including replacement of the BCM. The second invoice, also dated July 13, 2006, detailed the $343 of repairs that Respondent purportedly made to Mr. Shultz's LeBaron. Ms. Shea did not authorize the repairs to Mr. Shultz's vehicle, nor did she authorize the charges for that vehicle to be included on her invoice. The handwritten notations on the invoices, which appear to show that Ms. Shea consented to the repairs, were not written by Ms. Shea, but rather were written by Respondent without Ms. Shea's authority. Ms. Shea did not pay these invoices. Respondent placed a mechanic's lien on Ms. Shea's vehicle for the $1,657 of repairs that he claimed to have performed, but for which Ms. Shea failed to pay. On December 4, 2006, the Circuit Court for Brevard County entered an Order finding the lien to be "wrongful" and declaring it "null and void." On or about December 11, 2006, Ms. Shea recovered her vehicle from Respondent with the assistance of the Melbourne Police Department. Respondent had abandoned the vehicle behind the warehouses near his shop. The vehicle was not in a drivable condition when it was recovered. Respondent had removed belts and other parts that he claimed to have installed on the vehicle. 23. On December 11, 2006, Ms. Shea's vehicle was towed to Lane Pontiac-Buick-GMC (Lane) for an estimate of the repairs needed to make it drivable. The estimate prepared by Lane identified almost $4,400 of necessary repairs, including a new BCM. The estimated charges related to the BCM were approximately $400--$252.46 for parts and $148.42 for labor--which is far less than the $2,100 that Ms. Shea paid Respondent for the repair work that he claimed to have done on the BCM. Ms. Shea filed a complaint with the Department in August 2006 concerning her dealings with Respondent. The complaint was investigated by Garrett Craig Moon, who has approximately eight years of experience investigating motor vehicle repair shops for the Department. On September 21, 2006, Mr. Moon conducted an onsite visit to Respondent's shop. The visit was conducted after 8:00 p.m., because that was during the time Respondent regularly conducted his motor vehicle repair business. During the onsite visit, Mr. Moon requested that Respondent provide the documents supporting any repairs that he made to Ms. Shea's vehicle, including documents showing her authorization for the repairs and receipts for the parts used to complete the repairs. Respondent told Mr. Moon that he did not have the documents at the shop on that date, but he agreed to produce them by fax. Respondent subsequently sent a letter to Mr. Moon by fax, but he did not produce any of the requested records. He told Mr. Moon on December 4, 2006, that he refused to produce any records. Respondent had not produced the motor vehicle repair records for inspection by the Department as requested by Mr. Moon as of the date of the final hearing. On seven separate occasions, Ms. Shea paid Respondent for motor vehicle repairs where the cost of the repair work exceeded $100. Those payments included the $900 and $1,200 payments for repairs to the BCM and the $390 payment for the fuel pump, as well as payments for other repairs. The only invoices that Respondent prepared for the work that he allegedly performed for Ms. Shea were those described above dated July 13, 2006. Respondent did not provide written estimates to Ms. Shea for any of the repair work that he allegedly performed, and at no time did Ms. Shea waive the preparation of a written estimate. The invoices described above did not include odometer readings for Ms. Shea's Aztek or Mr. Shultz's LeBaron, a statement indicating whether anything was guaranteed in connection with the repair work, or the registration number for Respondent's motor vehicle repair shop. Respondent did not appear at the final hearing despite having been given due notice of the date, time, and location of the hearing. Respondent operated a motor vehicle repair shop under registration number MV10590 from 1993 to 2001. Respondent has no disciplinary history with the Department. The Department's records identify only one other consumer complaint against Respondent. Mr. Moon's report states that the other complaint was in 1996 and that it was mediated by a Department investigator.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order that: Finds Respondent guilty of violating Sections 559.905(1), 559.911(1), (5), and (6), 559.915(2), and 559.920(2) and (3), Florida Statutes, as alleged in the Administrative Complaint; Imposes an administrative fine of $12,000; and Revokes Respondent's motor vehicle repair shop registration. DONE AND ENTERED this 19th day of May, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of May, 2008.
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
