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 The issue to be resolved in this proceeding concerns whether a recreational vehicle with a gross vehicle weight in excess of 10,000 pounds meets the definition of "commercial motor vehicle" under relevant Florida law when driven by an employee of a licensed recreational vehicle dealer, rather than by the ultimate consumer.
Findings Of Fact On January 22, 2001, the Department of Transportation (Department) issued a driver vehicle inspection report (No. FL6050069 - Citation Violation) to Karl A. Nessamar. At the time the report was issued Mr. Nessamar was driving a private motor coach owned by Leisure Tyme RV, Inc. (Leisure Tyme), on a state road. A private motor coach is a vehicle which does not exceed the length, width and height limitations of Section 316.515(9), Florida Statutes, and is built on a self-propelled, bus-type chassis having no fewer than three load-bearing axles and being primarily designed to provide temporary living quarters for recreational, camping or travel use. See Section 320.01(b)(5), Florida Statutes. Leisure Tyme is a recreational vehicle dealer as defined in Section 320.822(i), Florida Statutes. The recreational vehicle Mr. Nessamar was operating did not have a U.S. Department of Transportation number on display. When Mr. Nessamar was issued the inspection report he did not possess a Class B driver's license; had no driver's record of duty status (log book); and had no medical certificate in his possession. Further, Mr. Nessamar was operating the vehicle in the course of his employment for Leisure Tyme at the time the inspection report was issued. The gross vehicle weight rating of the subject recreational vehicle was 33,700 pounds. When the inspection report was issued, Mr. Nessamar was an employee of Leisure Tyme and was driving the vehicle from Tampa, Florida to Mary Esther, Florida. It was being returned to Mary Esther after having been displayed at the Florida RV "Super Show." This recreational vehicle was not carrying any cargo, passengers or hazardous materials at the time it was driven by Mr. Nessamar and when the citation or inspection report was issued. Because of the issuance of the vehicle inspection report the vehicle and Leisure Tyme were placed "out-of-service," which means that none of the vehicles in its ownership or operation can be driven until those vehicles and drivers meet all of the requirements of Title 49 Code of Federal Regulations, Parts 390 through 395 and Chapter 322, Florida Statutes. The Department contends that whenever a recreational vehicle with a gross vehicle weight rating (GVW) exceeds 10,000, pounds and is driven by anyone other than the ultimate consumer or owner of that vehicle, it becomes a "commercial motor vehicle." It defines a commercial motor vehicle as any self- propelled or towed vehicle used on the public highways in commerce to transport passengers or cargo if such vehicle has a GVW of 10,000 pounds or more; is designed to transport more than 15 passengers including the driver; or is used in the transportation of materials found to be hazardous for the purposes of the Hazardous Materials Transportation Act, as amended (49 USC subsections 1801 et. seq.). See Section 316.003(66), Florida Statutes (2000). There is no question, however, that the vehicle at issue meets the definition of a "private motor coach" because it has three load-bearing axles, a self-propelled bus type chassis, is primarily designed to provide temporary living quarters for recreational camping and travel use and does not exceed the length, width and height limitations provided in Section 316.515(9), Florida Statutes. If indeed the vehicle in question is deemed to be a commercial vehicle, the driver, vehicle and owner become subject to many restrictions and regulations that do not apply to non- commercial motor vehicles. This is because the Legislature has adopted many of the federal regulations pertaining to commercial motor vehicles in Section 316.302(1)(b), Florida Statutes, specifically, 49 C.F.R. Parts 382, 385 and 390 through 397, with the exception of 49 C.F.R. Section 390.5. Thus, the pivotal question to determine concerning whether the cited violation is correct, is whether the vehicle in question is a commercial motor vehicle and, as related thereto, whether it is a recreational vehicle.
The Issue The issue for determination is whether the Commercial Motor Vehicle Review Board's decision in this matter is proper; a determination that necessarily requires a finding of whether Respondent is liable for payment of a civil penalty for commission of the infraction of interstate operation of a commercial motor vehicle without first obtaining a fuel use permit.
Findings Of Fact On March 17, 1990, Respondent's driver, Thomas Martin, was driving North on Interstate Highway 95 (1-95) in Respondent's 1985 Peterbilt three axle diesel truck. Martin stopped the vehicle at Petitioner's weigh station located on 1-95 near Yulee, Florida. Petitioner's station law enforcement personnel observed that there was no fuel tax identification on the truck and that Martin had no temporary fuel tax permit. The truck was registered in the State of Georgia and Martin informed station personnel that he was only going a short distance into Georgia to have repairs made to the truck. Further, he stated to personnel at the station that he thought the weigh station would be closed that day. Between the weigh station's location on the interstate and the boundary with the State of Georgia, there are no exits from 1-95. Vehicles traveling northbound are required to drive into Georgia before they can exit the interstate highway. A median crossing at the weigh station permits only law enforcement and emergency vehicles to cross over to the southbound lane of the interstate prior to entry into Georgia. Martin was assessed a civil penalty by weigh station law enforcement personnel of $50 as a result of Respondent's failure to comply with the State of Florida's fuel tax registration requirements. Further, Martin was then issued a temporary fuel tax permit for a fee of $45 to enable the vehicle to proceed from the weigh station. Martin requested that the Commercial Motor Vehicle Review Board review the civil penalty assessment. Subsequently, the Board met on April 12, 1990, and reviewed civil penalty assessed against Martin. The Board determined that a refund of the penalty to Martin was not appropriate and, on April 24, 1990, Martin requested a formal administrative hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered confirming the imposition of a civil penalty of $50 upon Respondent and affirming Respondent's payment of $45 for a fuel use permit in conjunction with the assessment of the civil penalty. DONE AND ENTERED this 14th day of March, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 14th day of March, 1991.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner has leased the motor vehicle that is the subject of the instant controversy, a 1992 Merdedes-Benz 300SE (hereinafter referred to as the "subject vehicle"), from Bill Ussery Motors, Inc., an automobile dealership located in Coral Gables, Florida (hereinafter referred to as the "Dealership"), since October 30, 1991, when he took delivery of the vehicle. At the time of delivery, the subject vehicle was new. Thereafter, various problems developed with the subject vehicle. Petitioner reported these problems to the Dealership, but the Dealership was unable to completely rectify them within 18 months of the date of delivery. Petitioner drove the vehicle less than 24,000 miles during this 18-month period. Some of the problems that Petitioner reported during the first 18 months of his possession of the vehicle still persist today. On or about April 23, 1993, Petitioner sent a completed Motor Vehicle Defect Notification form to the manufacturer requesting that it "make a final attempt to correct the . . . reported . . defects." The manufacturer responded by sending the following letter, dated April 27, 1993, to Petitioner: This will acknowledge the Motor Vehicle Defect Notification form you completed, which was received by this office today. This letter shall serve as a written request to provide Mercedes-Benz of North America ("MBNA") with an opportunity to inspect, verify and if necessary, repair your vehicle. As you are aware, Bill Ussery Motors, Inc., located in Coral Gables, Fl., is a reasonably accessible repair facility. Mr. Eric Moore, Field Service Manager, will contact you to make an appointment to meet with you. If you have any questions or wish to discuss this matter further, please do not hesitate to call me at (904)443-2150. In or about December of 1993, Petitioner retained Joseph Portuondo, Esquire, who sent, on Petitioner's behalf, the following letter, dated December 13, 1993, to the manufacturer: As you know, Mr. Palaez has experienced such difficulty with his automobile that it led to his filing of a Motor Vehicle Defect Notification with you on April 23, 1993. Thereafter, on April 27, 1993, you directed Mr. Palaez to Bill Ussery [Motors], Inc. of Coral Gables, Florida, to attempt the last chance repairs to his automobile. Mr. Palaez complied with your instructions. However, the defects in the automobile remain unresolved and out of service days are well in excess of those required under the Lemon Laws of this state. Simply put, Mr. Palaez has a lemon for which we demand a remedy. As such, we hereby demand that Mr. Palaez be immediately refunded the full purchase price of the vehicle. In the event that you do not immediately provide a refund, we hereby demand that this matter be referred to the appropriate state-certified settlement program. Needless to say, if we are unsatisfied with this matter, we will proceed for relief to the Florida New Motor Vehicle Arbitration Board of the Office of the Attorney General. We trust that our position in this matter is clear. It is truly unfortunate that Mercedes-Benz and its dealer have chosen to treat Mr. Palaez so poorly as a customer that he has had to resort to judicial relief. In response to Portuondo's letter, the manufacturer sent him the following letter, dated December 21, 1993: We are writing in response to the correspondence received by this office today, regarding your client's vehicle. Mercedes-Benz of North America is concerned in this matter and as a result, your concerns have been assigned to Mr. Eric Moore, Field Service Manager, a member of our staff for handling. You will, if not already, be contacted by him in the near future. Thank you for bringing this matter to our attention. On or about December 29, 1993, Portuondo sent Petitioner a copy of the manufacturer's December 21, 1993, letter, along with the following cover letter: Enclosed herein please find a letter recently received [with respect to the above-referenced] subject matter. I will let you know if there is any progress. Petitioner waited until August 12, 1994, to file with the Department his Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. He did not file a request sooner because, from April of 1993, the manufacturer and Dealership had repeatedly made representations to him, upon which he relied, that they would either make the necessary repairs to the subject vehicle or otherwise resolve the matter to his satisfaction so that there would be no need for him to resort to arbitration or litigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner's request for arbitration is not time-barred. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of March, 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 20th day of March, 1995.
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.
