The Issue The issue in this case is whether, and to what extent, the Petitioner, the Department of Transportation (DOT), should penalize the Thurmond Investment Co. for the operation of a commercial motor vehicle it owns in excess of the maximum gross vehicle weight authorized by the declared weight of the vehicle, in violation of Section 316.545, Fla. Stat. (1989).
Findings Of Fact On October 18, 1990, Certified Movers, Inc., was operating a commercial motor vehicle owned by Thurmond Investment Co. on State Road 419 in White Springs, Seminole County, Florida. On January 5, 1990, the vehicle had been registered with a declared maximum gross vehicle weight of 14,750 pounds, and state taxes were paid for the classification of commercial motor vehicles up to 14,999 pounds. Under the declaration and payment of the appropriate tax, Thurmond was authorized to operate the vehicle at up to 14,999 pounds. On October 18, 1990, the vehicle still was registered with a declared maximum gross vehicle weight of 14,750 pounds, and Thurmond was authorized to operate the vehicle at up to 14,999 pounds. However, on October 18, 1990, the vehicle was being operated at a gross vehicle weight of 62,900 pounds. 3/ On October 25, 1990, Thurmond changed the weight declaration for the vehicle to 80,000 pounds (the weight declared when the vehicle was registered for the years prior to January 5, 1990.) There was no evidence why the declaration was reduced for the period between January 5 and October 24, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order upholding the $2,395.05 fine it assessed against Thurmond in this case. RECOMMENDED this 2nd day of October, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 2nd day of October, 1991.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On February 12, 1993, Petitioner took delivery of a new 1/ 1993 Chevrolet C-1500 truck that he had purchased from Maroone Chevrolet, a Florida Chevrolet dealership. Thereafter, various problems developed with the vehicle. Petitioner reported these problems to Steve Moore Chevrolet, the Chevrolet dealership to which he brought the vehicle to be serviced (hereinafter referred to as the "Servicing Dealership"). The Servicing Dealership, however, was unable to remedy these problems within 18 months of the date of delivery (hereinafter referred to as the "18-month post-delivery period"). During the 18-month post-delivery period, Petitioner drove the vehicle more than 24,000 miles. By June 14, 1994 (approximately 16 months after the date of delivery), he had already driven the vehicle 26,569 miles. 2/ At least some of the problems that Petitioner reported during the 18- month post-delivery period still persist today. In the summer of 1995, Petitioner sent a completed Motor Vehicle Defect Notification form to the manufacturer of the vehicle, the Chevrolet Motor Division of General Motors (hereinafter referred to as "Chevrolet"), requesting that it "make a final attempt to correct the . . . reported . . defects." The notice was received by Chevrolet's customer assistance branch office in Tampa on August 16, 1995. Chevrolet, through its employee, Jennifer Kenyon, responded to the notice by sending the following letter, dated August 18, 1995, to Petitioner: This is to acknowledge receipt on August 18, 1995 by the Chevrolet Motor Division of your demand letter dated July 28, 1995. Please be advised that Chevrolet Motor Division stands ready to make any necessary adjustments, repairs, or replacements to any component contained on or in the motor vehicle now belonging to you bearing Vehicle Identification Number . . . which does not conform to the purpose for which they were intended or manufactured and which fall within the limitation set forth in the New Vehicle Limited Warranty supplied with said vehicle by General Motors, Chevrolet Motor Division. Should Chevrolet Motor Division's attempts to adjust, repair, or replace said component(s) to your satisfaction fail, you would be offered the arbitration process as a means of settling your dispute with General Motors, Chevrolet Motor Division. Please contact Steve Moore Chevrolet so they may assist in making arrangements for an inspection and/or repair. Petitioner telephoned Kenyon after receiving Kenyon's letter. During their telephone conversation, Kenyon told Petitioner that Chevrolet would probably "buy the vehicle back" from him, but that no final decision would be made until it was determined whether he "qualified for the Lemon Law." During a subsequent telephone conversation, Kenyon told Petitioner that a determination had been made that Petitioner did not "qualify for the Lemon Law" and that, although Chevrolet would not repurchase his vehicle, it would "work with him." Petitioner subsequently telephoned the Florida Attorney General's Office (hereinafter referred to the "AGO"). The AGO referred Petitioner to the Department. When Petitioner contacted the Department, he was advised to file a complaint/arbitration request with the Better Business Bureau's Auto Line program (hereinafter referred to as the "BBB program"), a certified arbitration program in which Chevrolet participates. Petitioner followed the advice he was given. On or about September 22, 1995, he filed a complaint/arbitration request with the BBB program. On September 27, 1995, the BBB program sent Petitioner a letter which read as follows: After careful review of your case, we have determined that your complaint is not eligible for further handling in the BBB AUTO LINE program. We have made this determination for the following reasons: The claim was not filed with the BBB within 6 months after the end of the Lemon Law Rights Period in order to pursue arbitration requesting assistance in replacement or repurchase of the vehicle. While we refer all cases to the manufacturer for review, we cannot require the manufacturer to submit to arbitration unless the claim is within the specific program limits. The program eligibility information is explained in the program summary. You may want to contact the Division of Consumer Services at 1-800-321-5366 to see if you qualify under the lemon law. While I am sorry we were not able to help you with your automotive complaint, I want to thank you for your interest in the BBB AUTO LINE program. Please contact us if you have any questions or if you believe we have made an error. On November 2, 1995, Petitioner filed with the Department a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. By letter dated November 3, 1995, the Department advised Petitioner that "a determination ha[d] been made to reject [his request because t]he request was not submitted in a timely manner."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioner's request for arbitration because it is time-barred. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of March, 1996. 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 22nd day of March, 1996.
The Issue Did the Department of Transportation (Department) improperly deny a refund to Petitioner of a penalty assessed pursuant to Chapter 316, Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of enforcing the provisions of Chapter 316, Florida Statutes. On June 7, 1999, the Department's Inspector Clemente Igracio stopped Petitioner's truck for an inspection. After inspecting Petitioner's truck, Inspector Igracio issued a Safety Report Citation numbered 0862152 wherein Petitioner was cited for the alleged violations of Sections 316.515(1) and (3) and 316.550, Florida Statutes. The total fine imposed was $1,600.00 which included a fine of $1,250.00 for the alleged violation of Section 316.515(3), Florida Statutes. However, since the maximum fine imposed for a Section 316.515(3), Florida Statutes, violation is $1,000.00, the total fine imposed was $1,350.00, which Petitioner paid. Subsequently, due to mitigating circumstances, the Department refunded Petitioner the $100.00 that it had paid for the alleged violation of Section 316.550, Florida Statutes. Petitioner does not protest the Section 316.515(1), Florida Statutes violation nor does it protest the Section 316.550, Florida Statutes violation. Petitioner stipulated that the combined length of the truck and trailer was 65 feet, 9 inches. Petitioner also stipulated that the length of the trailer was 42 feet, 10 inches. Inspector Igracio categorized the truck as a "straight- truck" because it had two axles and load-carrying capacity on the power unit. The vehicle in question is a two-axle vehicle with the cargo unit and motive power unit located on the same frame so as to form a single, rigid unit. The subject vehicle and trailer combination was 65 feet, 9 inches in overall length. The subject trailer was 42 feet, 10 inches in length. Petitioner did not have a permit to be over the legal length.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying the refund sought by Petitioner. DONE AND ENTERED this 20th of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000. COPIES FURNISHED: Peter Byra West Coast Towing 124 South Berkley Road Auburndale, Florida 32823 Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be granted an Independent Motor Vehicle Dealer License, pursuant to Section 320.27, Florida Statutes (2008).
Findings Of Fact The Department is an agency of the State, charged with regulating the business of buying, selling or dealing in motor vehicles under § 320.27, Florida Statutes (2007). The Respondent applied for a license as an Independent Motor Vehicle Dealer. The application was signed by Harold Gillis. Mr. Gillis is the Respondent's president and sole corporate officer. The Resident Agent is Andrew Kiswani. Mr. Kiswani is also known as Alex Kiswani and Andy Kiswani. On the insurance certificate filed with the license application, Mr. Kiswani is shown as one of the named insureds. Named insureds on this type of insurance certificate are typically the dealer principals, the people actually operating the dealership. Mr. Kiswani is a convicted felon. He was convicted twice for theft of state funds. He has thirteen convictions of failure to file state tax returns and seven convictions of issuance of worthless checks to the Department of Revenue. Mr. Kiswani previously was licensed as a Motor Vehicle Dealer, as President of Ocala Auto and Truck Sales, Inc. That license expired on April 30, 2008. On May 19, 2008, Mr. Gillis and Mr. Kiswani displayed vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed location. Both of them were warned by Department employees to cease the unlicensed activity. On June 2, 2008, Mr. Gillis and Mr. Kiswani again displayed motor vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed premises. They were again warned by Department employees to cease the unlicensed activity. On June 11, 2008, Ocala Auto and Truck Sales, Inc. sold a car to James Reed. That seller failed to apply for a Certificate of Title on behalf of Mr. Reed and failed to pay off a lien on the vehicle, within 10 days of acquisition of the vehicle. Ocala Auto and Truck Sales, Inc., sold a vehicle to Wesley Leon Linsey. On February 7, 2007, the seller failed to apply for a Certificate of Title and registration within 30 days of delivery of the vehicle. On December 28, 2007, Ocala Auto and Truck Sales, Inc. entered into a contract with Darrell Lenamond for the consignment sale of a motor vehicle owned by Mr.Lenamond. Ocala Auto and Truck Sales, Inc. sold the vehicle and never paid Mr. Lenamond the money due him from the sale. Mr. Kiswani operated Mr. Gillis's previous dealership. He would be actively involved in operating the dealership for which the license is sought, by the Respondent Corporation, as its Resident Agent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED: That the Florida Department of Highway Safety and Motor Vehicles enter a Final Order denying the Respondent's license application. DONE AND ENTERED this 31st day of July, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Harold Gillis Certified Motors, Inc. 2895 South Pine Avenue Ocala, Florida 34471
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was responsible for the licensing and regulation of the operation of commercial motor vehicles on all streets and roads in this state. The Respondent, Florida Mining & Materials operates and, at the time of the alleged violation, operated commercial vehicles over the roads of this state. By letter dated June 11, 1990, George L. Crawford, P.E., Acting Director of Lee County's Department of Transportation and Engineering, notified the Petitioner's Office of Motor Carrier Compliance that it appeared trucks were exceeding the posted weight limits of the Ortiz Road Culvert, located 0.3 miles south of SR - 80 in Lee County. As a result of this letter, the Department began to monitor the cited culvert and on July 19, 1990, Officer Ellis K. Burroughs observed Respondent's cement dump truck cross the culvert in front of and to the side of which, in plain view, was a sign indicating that trucks weighing over 5,000 pounds should detour and go down Luckett Road without crossing the culvert. According to Mr. Burroughs, Respondent's vehicle did not detour as directed and went north on Ortiz Avenue, over the culvert. Mr. Burroughs gave chase and finally stopped the driver of Respondent's truck some 6 or 7 blocks north of the culvert. When asked why he had failed to use the detour and had crossed the culvert, the driver of the truck said his office had told him to do so and he had done so before. This comment is introduced not to show aggravation but to dispel any inference of lack of knowledge of the limitation. The sign in question had been erected on December 4, 1980. Some months after this incident, the sign was changed and the current permissible weight is 20 tons. No reason was given for the change nor was any information presented as to whether any modifications were done to the culvert before or since the change. The culvert in issue was described as of light construction - a culvert pass-through underneath the roadway. Mr. Burroughs weighed the offending truck at the scene and determined it had a gross weight of 45,700 pounds. The legal weight on that bridge at the time was only 5,000 pounds and, therefore, the Respondent's truck was overweight by 40,700 pounds. At a penalty of 5 cents per pound of violation, the penalty was assessed at $2,035.00 which was paid by the Respondent on August 3, 1990. Respondent's representative, Mr. Watson, was not present at the time and had no personal knowledge of the incident. He claims, however, that his company was operating under the impression that even at the time, the weight limit over that culvert was 20 tons. He does not concede that at the time of the incident the load limit was only 5,000 pounds. The weight of the evidence, however, is that it was. He claims this road is the only way they have of getting to certain jobs and if cut off from crossing, they are cut off from their business. Mr. Watson admittedly is not familiar with the area and overlooks the fact that there are alternative routes to the other side of that culvert, albeit somewhat longer. He discounts the somewhat longer, (2 1/2 miles additional), route claiming, "That's a lot of milage when what you're hauling is redi-mix concrete." Mr. Watson introduced several pictures of other large trucks going over that same culvert in an effort to show that other vehicles may also have been in violation. Some of those pictures were taken subsequent to the limit change and reflect that the limit is 20 tons. Further, Mr. Burroughs and Mr. Thompson indicate that subsequent to the letter from the County requesting increased surveillance, at least 45 to 50 citations were issued at that culvert. Some carriers were cited several times. Respondent was cited only once. After paying the penalty assessed, Respondent appealed it to the Department's Commercial Vehicle Review Board which reviewed it at its November 8, 1990 meeting and determined that a refund was not appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's request for a refund of the $2,035.00 fine paid for the violation of the weight limits on the culvert in question here be denied. RECOMMENDED this 8th day of July, 1991, 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 8th day of July, 1991. APPENDIX TO RECOMMENDED ORDER 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 to this case. COPIES FURNISHED: H. Robert Bishop, Jr., Esquire Department of Transportation 695 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Watson Operations Manager Florida Mining & Materials Post Office Box 2367 Tallahassee, Florida 33902 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact A commercial vehicle owned by Garrett Enterprises of Tampa, Inc. and operated by Respondent Smith entered the weigh station located on I-4 West in Plant City, Hillsborough County, Florida, on August 8, 1991. During the routine inspection, it was discovered that the vehicle's registration had expired on May 31, 1991. The tag on the vehicle clearly bore the expiration date. The statutory legal weight of 35,000 pounds for an expired registration was subtracted from this vehicle's tax class weight of 76,180 pounds to determine the amount by which the vehicle was overweight. A penalty of 5 cents a pound was assessed upon the difference of 41,180 pounds which amounted to a fine of $2,059.00. Respondent Smith has driven commercial vehicles in Florida for seven years. Prior to the registration at issue in this proceeding, he had never purchased an apportioned tag. Although he was originally aware that the apportioned tag he purchased would expire on May 31, 1991, he did not pay attention to the expiration date noted on the tag because he assumed the Department of Highway Safety and Motor Vehicles would mail him a renewal notice prior to its expiration. The Department of Highway Safety and Motor Vehicles does not mail renewal notices to owners of vehicles with apportioned tags. Respondent did not become aware of this variation in the Department's notification policy until after his vehicle was inspected and he had paid the penalty. Respondent had the vehicle registration renewed within ten days after the instant fine was levied.
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final Order be entered finding that the penalty of $2,059.00 was correctly assessed and denying Respondent's request for a refund or a reduction. DONE and ENTERED this 19th day of October, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY 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 19th day of October, 1992. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Florida Department of Transportation 605 Suwanee Street, M.S. 58 Tallahassee, FL 32399-0450 Jesse Smith 114-L Mitchell Road Land O' Lakes, FL 34639 Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458
Findings Of Fact Walker is a Florida corporation, with its principal office in Orlando, Florida. Designated a "minority business enterprise" for purposes of certain governmental contracts, the company is engaged in the business of demolition and transportation. Herb Walker is president and owner; he took over the operation of the business in 1988 or 1989 from his father, who had operated the business for approximately 20-25 years. At the relevant time, April through September of 1995, Walker owned approximately 13 vehicles: five trucks, four tractors and four trailers. Walker employed or leased approximately eight drivers, one of whom (Joe Warren) also served as a mechanic. The lease arrangement is for the convenience of the company for payroll and insurance purposes but does not relieve the company of compliance with certain record-keeping requirements. Terron R. Lindsey (Officer Lindsey) is a Motor Carrier Compliance Officer with DOT. In that capacity, he enforces state and federal laws and regulations governing commercial carrier safety through roadside inspections and terminal audits (also called safety compliance reviews). In March of 1995, Officer Lindsey and some other DOT staff were conducting an enforcement survey at Interstate 4 and U. S. 192, near Kissimmee. In the process, they pulled over approximately four Walker vehicles around 8:00 a.m. on March 15, 1995. There were problems with each vehicle: over-height, over-weight, and brakes out of adjustment. John Valois was one of the drivers. He did not have a required medical examination in his vehicle. Because of these roadside violations, and at the suggestion of John Valois, Officer Lindsey determined that he should conduct a terminal audit of Walker's facility. The Walker facility is a trailer, with Herb Walker's office at one end, an administrative office in the middle, and a waiting room or reception area at the other end. Officer Lindsey, unannounced, appeared at the facility on April 18, 1995 and found Inez Walker, Herb Walker's mother, in the office. Ms. Walker called John Valois on the radio and established telephone contact between him and Officer Lindsey. Herb Walker came in, but spoke only briefly to Officer Lindsey, and said that John Valois was in charge of the drivers and vehicles. John Valois confirmed by telephone that Walker had eight drivers, and Ms. Walker gave Officer Lindsey driver files for the following: Bob Beck, John Valois, Joe Warren, Duane Cross, Mike Walker, Calvin Bryant, Steve Tillman and James Thompson. Not one of the drivers' files was complete. All were missing essential documents, including a controlled substance test. Most of the files lacked the physical examination report and other required reports and documentation. Officer Lindsey also inquired about maintenance files on vehicles owned by the company. These were not produced because Mr. Valois explained that the files were kept at Parkway Trucks, the company which services the Walker vehicles. Officer Lindsey explained that the files needed to be available where the vehicles are kept, at the terminal. After completing his safety compliance review, Officer Lindsey told Inez Walker that he would waive the fines for any deficiencies as long as the company came into compliance by a follow-up visit in 60 to 90 days. He gave a copy of his survey checklist to Ms. Walker. Officer Lindsey returned to Walker's facility on July 12, 1995. Herb Walker told him that the drivers' files were all at the physician's office, where the drivers had their medical examinations. Officer Lindsey responded that he would return the next morning and that the files needed to be available then. On July 13, 1995, Officer Lindsey met John Valois at the Walker office. Mr. Valois confided that most of the deficiencies still existed, that he did not have time to do all of the paperwork, but that he could get the files current with another week's grace period. Officer Lindsey denied the extension request and examined the files. The vehicle maintenance forms were still not available and the drivers' files were still not complete. Controlled substance test results were available on five drivers, one of whom had failed the test and was still working. At Officer Lindsey's direction, that employee was removed. Physical examinations had been performed for four drivers. Officer Lindsey completed his second review and he told John Valois that penalties would be assessed after Officer Lindsey conferred with his supervisor. Together with Captain Ernest A. Brown, Officer Lindsey developed the following penalties for the Walker violations: Incomplete Driver Files $ 800 (eight drivers at $100 each) No Driver Medical Examinations $ 400 (four drivers at $100 each) Subpart H (No controlled substance $1,500 test) (six drivers at $250 each) No Maintenance Files $1,300 (13 vehicles at $100 each) $4,000 Petitioner's Exhibit No. 10) In assessing these penalties, Captain Brown and Officer Lindsey considered the fact that Walker is a small business. No fines were imposed as to records for out-of-service vehicles; and instead of penalizing each separate file violation, they assessed $100 for each of eight incomplete driver files. Since two drivers were no longer employed, out of the eight identified on April 18, 1995, the $250 fine for missing controlled substance tests was applied for six employees only. Officer Lindsey's rationale for assessment of the controlled substance test penalty was inconsistent as he had explained to Ms. Walker that violations corrected by his next visit would not be penalized. At hearing, he explained that he did not have the authority to waive the penalty for missing drug tests. Although the rules permitted a maximum aggregate amount of $5,000 in penalties assessed in one terminal audit, the aggregate amount in this case was $4,000. On August 1, 1995, Officer Lindsey returned to the Walker office and delivered to Walker's General Manager, Roy Francis, the notice of violations and penalties. The notice of violations and penalties include procedures for protest to the Commercial Motor Vehicle Review Board, including the provisions that the penalty had to be paid in order for a protest to be placed on the Review Board agenda. Roy Francis indicated that the company would protest the audit and penalties but did not pay the penalties on August 1, 1995. Herb Walker was also present on August 1, 1995 and was aware of the penalties. Terminal audits were made part of DOT's safety compliance program around 1990. At first, the audits were conducted as a courtesy education and information exercise. In 1993, with the promulgation of statutory authority and administrative rules, the agency began assessing penalties for violations found in the audits. By 1995, when the Walker audit was conducted, the agency still had very little experience with penalty collection in terminal audit cases. Walker was the first case in which the carrier refused to pay the penalty while the protest was pending. By the end of August of 1995, when Walker had still not paid the $4,000 assessed by Officer Lindsey, Captain Brown, after consultation with legal and other state-level department staff, authorized collection enforcement as described in Chapter 18 of the Motor Carrier Compliance Manual. On August 28, 1995, a field officer of DOT impounded a Walker vehicle found at County Road 472 and State Road 400. The vehicle was taken to the DOT yard in Deland, Florida, where it remained, in lieu of payment of the penalties. Herb Walker was initially told that he had to pay the penalties before his protest would be heard. Later, Elise Kennedy, Executive Secretary for the Commercial Motor Vehicle Review Board, informed him that his protest would be heard by the Board on September 14, 1995. Herb Walker did not appear before the Review Board in person or through counsel. The Board considered his written protest and the testimony of Officer Lindsey and denied the protest. Herb Walker admits that some of the deficiencies found by Officer Lindsey in April of 1995 existed at that time. He also admits that some deficiencies still existed in July of 1995, at the time of the return visit. However, he contends that he should have been given more time to come to full compliance, that he expended thousands of dollars to achieve compliance, and that in lieu of a fine or penalty, he should be permitted to put the funds into upgrading his safety program. Walker is one of only a few cases involving assessment of penalties as the result of a terminal audit. It is the first, and only case, where the penalty was not paid and a vehicle was impounded. The enforcement officer has some discretion in granting compliance deadline extensions. Officer Lindsey and his superior, Captain Brown, considered the "attitude of non-compliance" evinced by Walker when they assessed the penalty in this case. Sometimes it requires the actual assessment of a penalty before that attitude is changed. In spite of Walker's assertions that he now has an effective safety compliance program, there were two egregious roadside violation incidents in November of 1995 and another more recent incident shortly before the hearing. In one of the November incidents, a driver was found driving a vehicle that earlier in the afternoon had been placed "out of service" by the DOT inspection officer as the result of defective brakes and other equipment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter its final order finding H. B. Walker, Inc. guilty of violating 49 CFR, parts 391.43 and 391.51, and assessing a civil penalty of $1200. DONE AND ENTERED this 4th day of November, 1996, in Tallahassee, Florida. MARY CLARK 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996.
The Issue The issue in this proceeding is whether a county which operated a motor vehicle inspection station under the now defunct program is entitled to a cash refund of moneys that the county collected from motorists who were tardy in having their automobiles inspected. Alachua County contends that these fees were collected by the county to be held in escrow by DHSMV. With the demise of the inspection system, the county contends that the proceeds should be returned to the county. Both Respondents contend that the county is not entitled to any such funds and that there is no statutory authority for either DHSMV or the Comptroller to make such a refund.
Findings Of Fact The parties entered into a stipulation of facts. While issues remained between the parties as to precise monetary amounts, these issues are not pertinent to the facts deemed relevant for the purposes of this Recommended Order. Accordingly, the findings of fact set out in the stipulation are hereby adopted as the Findings of Fact in this Recommended Order. The parties' stipulation is attached to this Recommended Order as Appendix I and is incorporated into the Recommended Order as fully as if it were set out herein. The paragraphs which follow constitute a summary of the factual findings for the sake of clarity. A motor vehicle inspection program was established in Florida in 1967. See: Chapter 67-301, Laws of Florida. DHSMV was in charge of administering the program. Alachua County operated one motor vehicle inspection station in the county. The station was licensed by DHSMV in July, 1968, and operated continuously until the motor vehicle inspection program was terminated on September 30, 1981. When a motorist had his or her vehicle successfully inspected at the Alachua County station, the county would place an inspection certificate on the vehicle. The county collected a fee for the inspection service. The certificate was purchased from DHSMV at a cost of 40 cents per certificate. Certificates were ordered by the county in bulk, typically on an annual basis. In accordance with Section 325.24, Florida Statutes, Alachua County would collect a delinquent fee of $1.00 from motorists who had their vehicles inspected subsequent to the time required by law. These delinquent fees were forwarded by the county to DHSMV. DHSMV deposited them into the State's general revenue fund. DHSMV maintained a record of the amount of delinquent fees that had been forwarded by the county. When the county ordered inspection certificates, the cost of the certificates was offset by debiting the delinquent fee account. The county was thus able to offset the cost of obtaining inspection certificates through the delinquent fees that it had collected. If the county had not collected sufficient delinquent fees to offset the cost of all certificates that it needed to purchase, the remaining certificates would be purchased with cash. At the end of a calendar year, inspection certificates that had been purchased by the county would become obsolete and unusable. If the county timely returned these certificates to DHSMV, the Department would issue a cash refund to the county for certificates that had been purchased with cash and credit the county's delinquent fee account for certificates that had been purchased by using the account. In 1981, the Florida automobile inspection program was terminated by legislation. See: Chapter 81-212, Laws of Florida. In bringing the program to an end, DHSMV continued to handle returns of unused inspection certificates in the same manner that it had previously. If a county returned unused certificates that had been purchased with cash, a cash refund would be issued. If a county returned certificates that had been purchased through the delinquent fee account, the account would be credited. The delinquent fee accounts became obsolete when the program concluded on September 30, 1981.
