The Issue Should Respondent be required to pay Petitioner Twenty-Five Hundred dollars ($2,500.00), as a civil penalty for causing or permitting an out-of-service driver to operate a commercial motor vehicle (vehicle)?
Findings Of Fact Bryant Gay is a Motor Vehicle Compliance Officer who works for Petitioner. He was on duty on March 6, 1998. On that date, consistent with his employment, he stopped a commercial motor vehicle owned by Respondent and operated by Danny Holton. The stop was made in Gadsden County, Florida, on U.S. 90. The time of the stop was approximately 5:00 p.m. The basis for this stop was the suspicion that there was a violation of the weight axle law, premised upon Officer Gay's observation of the truck tires and springs. Once the stop was made the truck was weighed and was found to be of legal weight. But a check of Mr. Holton's driver's license revealed that the license did not carry the proper endorsements to operate a tank vehicle (such as Respondent's) of a capacity of more than one thousand gallons. As a consequence, Mr. Holton was cited for operating the vehicle without the proper driver's license and was fined one- hundred dollars ($100.00), pursuant to citation. Officer Gay also advised Mr. Holton that Mr. Holton was being placed out-of-service. After placing Mr. Holton out-of-service, Dan Strauss, the son of Fred Strauss, who is the owner and president of Respondent, was contacted. At that time Dan Strauss was serving as the acting representative of the Respondent in Fred Strauss' absence. Dan Strauss came to the scene of the stop and paid the $100.00 civil penalty for Mr. Holton's violation of the driver's license requirement that had been cited. Dan Strauss also brought a second driver to drive the subject vehicle back to Respondent's business premises. The second driver was allowed to return the subject vehicle based upon Officer Gay's belief that the second driver had the necessary license endorsements to operate the vehicle. Nothing in the conversation held between Officer Gay and Dan Strauss, at the point in time when the $100.00 civil penalty was paid, and the truck placed in the custody of the second driver, could reasonably be interpreted by Dan Strauss to allow Mr. Holton to continue to operate the subject vehicle before obtaining appropriate license endorsements. Nor did the conversation create a reason to believe that such an operation by Mr. Holton, if discovered by Petitioner's officer, would again be met with a further citation not to exceed $100.00. Nonetheless, Dan Strauss made the business judgment, that a customer, who was in immediate need of assistance to deal with a failed septic system, should not be ignored, even in the circumstance where Mr. Holton would be called upon to drive the subject vehicle to provide the service. Thus, Dan Strauss, having been told by Officer Gay that Mr. Holton was out-of-service to operate the subject vehicle, dispatched Mr. Holton to provide the service to the customer. At around 6:30 p.m., on March 6, 1998, Officer Gay saw Mr. Holton pulling the subject vehicle onto U.S. 27, in Gadsden County, Florida, and stopped the vehicle again. On this occasion, Officer Gay imposed a further citation in the amount of a civil penalty of twenty-five hundred dollars ($2,500.00), against Respondent, for permitting Mr. Holton to operate the subject vehicle when Mr. Holton had been declared out-of-service. When contacted about the additional citation, Dan Strauss told Officer Gay that he understood that Mr. Holton had been placed out-of-service as a driver of the subject vehicle; however, Dan Strauss told Officer Gay, that he, Dan Strauss, had assumed that if Mr. Holton was caught operating the vehicle it would only lead to another $100.00 civil penalty. No facts presented at hearing mitigate the twenty-five hundred dollar ($2,500.00) civil penalty for allowing an out-of- service driver to operate Respondent's vehicle.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes a twenty-five hundred dollar ($2,500.00) civil penalty against Respondent. DONE AND ENTERED this 21st day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1998. COPIES FURNISHED: Kelly A. Bennett, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Fred Strauss Talquin Septic Tank Post Office Box 559 Midway, Florida 32343 Thomas F. Barry, Secretary Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether Respondent properly fined Petitioner the sum of $647.00 for the reasons set forth in the Load Report Citation Number 029011M, issued March 5, 1997.
Findings Of Fact Petitioner is the owner of Keys Marine Drilling, which operates in Monroe County, Florida. Petitioner uses a large floating pile driver in his business. This pile driver is usually stored on Petitioner's property until it is needed on the job site. The pile driver usually remains on the job site until the job is completed. At all times pertinent to this proceeding, Petitioner was the owner and operator of a 1978 Ford van. This van had been licensed as a “collectible” vehicle and had a gross vehicle weight of 10,000 pounds. On March 5, 1997, Petitioner was driving his van on U. S. 1 in Monroe County. Petitioner was using his van to tow the floating pile driver, which had been placed on a trailer. On March 5, 1997, Jorge Fernandez Delara, a motor vehicle compliance officer employed by Respondent observed that Petitioner did not stop at a weigh station at Plantation Key. Officer Delara immediately thereafter stopped Petitioner. On the instructions of Officer Delara, Petitioner returned to the weigh station.1 Officer Delara determined that Petitioner had registered his van as a collectible vehicle.2 This registration would not permit Petitioner's vehicle to have a gross vehicle weight in excess of 10,000 pounds. Officer Delara weighed Petitioner’s van, trailer, and the load on the trailer, and determined that the combined weight was 22,940 pounds. Thereafter, Officer Delara issued to Petitioner the citation that is at issue in this proceeding. Officer Delara correctly determined that Petitioner’s van's registration was not proper.3 He determined that Petitioner’s rig was 12,940 pounds overweight. He thereafter fined Petitioner the sum of $647.00, which is calculated, pursuant to Section 316.545(2)(b), Florida Statutes,4 by multiplying the number of pounds the rig was overweight by $0.05.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order that sustains the fine imposed against Petitioner. DONE AND ENTERED this 10th day of February, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1998.
The Issue The issue for disposition in this proceeding is whether Respondent's motor vehicle dealer license should be revoked for his prior conviction of a felony, as proposed in an administrative complaint dated October 26, 1993.
Findings Of Fact It is uncontroverted that Respondent Lorenzo Reddick, Jr. (Reddick) holds an independent motor vehicle dealer license, issued by the Department of Highway Safety and Motor Vehicles (DHSMV). The complaint fails to allege, and there is no evidence of, when the license was issued. The licensed place of business is 3214 Orange Center Boulevard, #C, Orlando, Florida. On April 27, 1993, Reddick pleaded, and was adjudged guilty of a single count offense in a multi-count superseding indictment, in U.S.A. v. Lorenzo Reddick, Case #92-104 Cr-Orl-19, in the U.S. District Court for the Middle District of Florida. The offense, as described in the Judgment, was "Engaging in Monetary Transactions in Property Derived from Specified Unlawful Activity", on 12/30/91, pursuant to title 18 U.S. Code, section 1957(a), and title 18 U.S. Code, Section 2. (Petitioner's exhibit #1) Reddick was sentenced to twenty-four months imprisonment, commencing May 21, 1993, with two years supervision after release. According to the court documents comprising Petitioner's exhibit #1, the sentence was less than provided in sentencing guidelines "upon motion of the government, as a result of defendant's substantial assistance." Reddick is currently serving his prison term. At the time of the offense Reddick was not operating nor was he licensed as a motor vehicle dealer. There is no evidence of whether his license was obtained before or after his conviction. There is no evidence whatsoever of the offense other than what is found on the face of the judgment, as reflected above. DHSMV learned of Reddick's conviction in the process of investigating a filed complaint related to failure to transfer title and registration of a vehicle purchased from Reddick's dealership. Neil Chamelin was the manager of DHSMV's dealer license and consumer complaint programs and was responsible for evaluating requests for administrative action and preparing administrative pleadings for the division director. Chamelin received a copy of Reddick's Judgment of Conviction and Sentence and based the administrative complaint on those documents only. Chamelin has no independent knowledge of the offense. DHSMV has a longstanding policy that a single felony conviction may be sufficient for the agency to take action against a dealer's license. That is, the agency has interpreted the language of the relevant statute to mean that a licensee does not automatically get one free felony before his dealer's license is jeopardized, even after the language was amended seven or eight years ago to include a requirement of sufficient frequency of violations as to establish a pattern of wrongdoing.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: that the Department of Highway Safety and Motor Vehicles enter its Final Order dismissing the Administrative Complaint that is the subject of this proceeding. DONE AND RECOMMENDED this 17th day of May, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 17th day of May, 1994. COPIES FURNISHED: Michael J. Alderman Assistant General Counsel Department of Highway Safety & Motor Vehicles Neil Kirkman Building, Room A432 Tallahassee, Florida 32399-0504 James R. Cunningham, Esquire 200 East Robinson, Suite 1220 Orlando, Florida 32801 Charles J. Brantley, Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Room B439 Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue Whether the Petitioner is entitled to a refund of the fine remitted for a Load Report Citation, citation number 062459M, for operating a commercial motor vehicle with an expired apportioned tag.
Findings Of Fact The Department is the state agency charged with the responsibility of monitoring commercial motor vehicles driven within the state. In this regard, the Department issues Load Report Citations to vehicles failing to comply with the requirements of Section 316.545, Florida Statutes. On April 1, 1997, a vehicle driven by Depriest Ivey, Jr., was issued Load Report Citation number 062459M for operating within Florida with an expired Illinois apportioned tag. Based upon the weight of the vehicle, Mr. Ivey was fined $1,430. Mr. Ivey contested the fine amount and claimed that he had been issued a temporary IRP prior to entering the scales in Old Town, Florida. Mr. Ivey entered the weigh station at Old Town, Florida, at approximately 9:33 a.m., on April 1, 1997. On March 31, 1997, the Illinois apportioned tag used on the vehicle driven by Mr. Ivey expired. At the time of the stop noted above, Mr. Ivey did not possess a valid registration for the vehicle for Florida. After the stop, Mr. Ivey obtained a registration for the vehicle from Landstar Ranger, Inc., via facsimile. By the time Mr. Ivey was able to secure the registration for the vehicle, he had already been operating the vehicle in Florida without a valid registration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order dismissing Petitioner's request for a refund. DONE AND ENTERED this 18th day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1997. COPIES FURNISHED: Thomas F. Barry, Secretary Attention: Ms. Diedre Grubbs 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, Room 562 605 Suwannee Street Tallahassee, Florida 32399-0450 Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Depriest Ivey, Jr., President Ivey & Ivey Transport Post Office Box 772118 Coral Springs, Florida 33077
The Issue The issue is whether Respondent violated Section 320.27, Florida Statutes, and if so, what administrative penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the business of buying, selling, or dealing in motor vehicles or offering or displaying motor vehicles for sale. Respondent is, and has been at all times material hereto, a licensed independent motor vehicle dealer in Florida, having been issued license number VI-29558. Petitioner issued the license based upon an application signed by Brenda L. Johnson, as President. Respondent's address of record is 3707 N. Main Street, Jacksonville, Florida 32206. On or about August 30, 2001, two of Petitioner's compliance examiners conducted an initial records inspection of Respondent's dealership. The purpose of the initial inspection was to determine whether the dealership was complying with statutory and rule requirements. Because the initial inspection was of an educational nature, it gave the compliance examiners an opportunity to provide Respondent with guidance in areas that needed improvement. During the August 30, 2001, inspection, the compliance examiners found violations of Sections 319.23(6), 320.131(7), 320.27(6), 320.27(7), 320.27(9)(b)16, and 320.27(9)(b)17, Florida Statutes. The compliance examiners also found violations of Rule 15C-1.004(3), Florida Administrative Code. Specifically, the August 30, 2001, inspection, included but was not limited to the following violations: (a) titles on vehicles not properly filled out; (b) buyer's guides not posted; (c) no titles to prove ownership on vehicles; (d) no proof of purchase for one vehicle; (d) titles not transferred within 30 days of sale; and (e) temporary tag log not properly filled out. The compliance examiners discussed the above-referenced violations with Respondent's general manager, Steve Landers, advising him that Petitioner would conduct a follow-up inspection within 60 days. The inspectors also advised Respondent's president, Barbara Johnson, about the violations via telephone. On or about October 10, 2001, Petitioner's compliance examiners conducted the 60-day follow-up inspection of Respondent's records. During this inspection, Respondent did not provide the examiners with a title or other proof of ownership for a 1991 Lincoln, Vehicle Identification Number (VIN) 1LNCM82W0MY78. The Lincoln was parked in an area where other vehicles were displayed for sale. There is no credible evidence that the Lincoln was Mr. Lander's personal vehicle. The October 10, 2001, inspection also revealed that Respondent had issued a total of 50 temporary tags. However, there were no records to verify the sale of the vehicles listed in the temporary tag log. During the October 10, 2001, inspection, the compliance examiners requested Mr. Landers to take copies of all of Respondent's records to Petitioner's office in Jacksonville, Florida, for a continuation of the follow-up inspection. The examiners also made a request for Mrs. Johnson to accompany Mr. Landers to the Jacksonville office. On or about October 25, 2001, Petitioner's compliance examiners conducted the continuation of the 60-day follow-up inspection of Respondent's record at the Jacksonville office. During the inspection, the examiners reviewed a total of 30 motor vehicle records, finding the following violations: (a) no proof of purchase for 30 vehicles; (b) no documentation indicating that Respondent had applied for titles for 20 vehicles; (c) no copy of registration for tag and title issuance documentation on 26 vehicles; and (d) no documentation indicating the date sold and odometer disclosure for 27 vehicles. On or about August 21, 2002, Petitioner's compliance examiners conducted another follow-up records inspection on Respondent's premises. At that time, Respondent did not have a title or other proof of ownership for a blue Pontiac Grand Am, VIN 1G2NE5432NM052548, or a red Dodge Shadow, VIN 1B3XP24D6PN566374, both of which were displayed for sale. There is no persuasive evidence that Respondent ever had the required proof of ownership for these vehicles. On August 21, 2002, Respondent's records indicated that it had sold three vehicles: (a) a 1985 Ford, VIN 1CLEG25K047; (b) a 1994 Chevrolet, VIN 2C1MR2464R6749435; and (c) a 1989 Buick, VIN 1G4NJ14D1kM026233. Respondent's records relating to the purchase and sale of these vehicles were incomplete. For instance, there was no proof of purchase/sale for two of the vehicles. Additionally, Respondent did not have records of the odometer disclosure at the time of purchase or sale for any of the three vehicles. Finally, Respondent had issued more than two temporary tags for one vehicle. While the examiners were conducting the August 21, 2002, inspection, Respondent had six vehicles displayed for sale. None of the vehicles had buyer's guides posted in their windows. The examiners reviewed Respondent's temporary tag records on August 21, 2002. They found that several such records lacked required signatures and VINs. On or about October 11, 2002, Petitioner's compliance examiners conducted a third follow-up records inspection on Respondent's premises. At that time, Respondent did not have title or any other proof of ownership for the following: (a) a 1989 Plymouth, VIN 1P3BA56J8KF504260; (b) a 1992 Toyota, VIN JT2EL46B8N0@@8549; and a 1988 Toyota, VIN 1NYAE82G4JZZ536776. Additionally, the 1989 Plymouth and the 1992 Toyota did not have a buyer's guide properly posted. The review of Respondent's sales records on October 11, 2002, revealed that Respondent had sold a 1993 Ford, VIN 1FAPP14JPW130409. However, Respondent did not have proof of purchase or an odometer disclosure statement for this vehicle. On October 11, 2002, Respondent's temporary tag records indicated that it had issued three temporary tags to L. Smith for the 1993 Ford. Respondent issued these tags on June 26, July 26, and August 24, 2002. The October 11, 2002, inspection revealed that Respondent sold the 1993 Ford on June 26, 2002, and applied for the title on September 5, 2002. Thus, Respondent failed to file the application for certificate of title by July 26, 2002, or within 30 days of June 26, 2002. At the conclusion of every inspection referenced above, Petitioner's compliance examiners reviewed the deficiencies they found with Mr. Landers. They discussed the statutes and rules that Respondent had violated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner issue a final order revoking Respondent's motor vehicle dealer's license. DONE AND ENTERED this 14th day of August, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 14th day of August, 2003. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Kenneth Steven Landers Officer/Director 433 Safer Lane Jacksonville, Florida 32211 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0600
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 falsifying the log book of a commercial motor vehicle.
Findings Of Fact On February 4, 1992, Jimmy R. Holton was driving on State Road (SR) 76 in a commercial vehicle bearing Vehicle Identification Number (VIN) 1F4Y05YB8LH385086. The vehicle was owned by Respondent, Herbert W. Allen d/b/a Allen Transit. At 10:42 a.m., on that date the vehicle was stopped for inspection by Michael Roberts, a Motor Carrier Compliance Officer employed by Petitioner. Roberts examined the driver's log book and discovered the driver had pre-logged a future activity. The log reflected that the entry was made at the not yet existing time of 11:30 a.m. The officer completed his inspection and issued a Safety Report and Field Receipt which reflected his action of assessing a civil penalty of $100 for the false entry in the log book and putting the driver out of service for eight hours. The penalty was paid at that time. The vehicle was transporting automobile parts, non- hazardous material, from Jacksonville, Florida. The vehicle had left Delray Beach, Florida headed for Stuart, Florida when stopped for inspection. The vehicle's travel had occurred inside the State of Florida. The driver was maintaining a log book in compliance with legal requirements of Section 316.302(2)(d), Florida Statutes (1991), because the intrastate distance for the contemplated trip exceeded a radius of 200 air miles from Jacksonville, Florida.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered rescinding the previous imposition of the $100 civil penalty administratively imposed by Petitioner. DONE AND ENTERED this 4th day of November, 1992, 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 4th day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Respondent's Proposed Findings None submitted. Petitioner's Proposed Findings 1.-2. Accepted. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Herbert W. Allen P.O. Box 742 Hiawassee, GA 30546 Vernon L. Whittier, Jr., Esq. Assistant General Counsel 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Thorton Williams, Esq. General Counsel Department of Transportation Rm 562, Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issue is whether Petitioner is entitled to a partial refund pursuant to Subsection 212.08(9)(b), Florida Statutes (2005), for sales tax paid on vehicles and parts thereof during the period March 20, 2004, through August 20, 2006.
Findings Of Fact The Department is the state agency responsible for administration of the Florida sales and use tax pursuant to Sections 20.21 and 213.05, Florida Statutes (2008).2 Saddle Creek is a Florida corporation with its principal place of business located at 3010 Saddle Creek Road, Lakeland, Florida. Saddle Creek is a motor carrier within the meaning of 49 U.S.C. Section 13102(14). Pursuant to that provision, the term "motor carrier" means "a person providing motor vehicle transportation for compensation." Effective November 21, 2003, Saddle Creek obtained its Contract Carrier Permit from the Federal Motor Carrier Safety Administration ("FMCSA"). The Contract Carrier Permit authorized Saddle Creek to engage in transportation as a "contract carrier" of property (except household goods) by motor vehicle in interstate or foreign commerce. Since November 21, 2003, Saddle Creek has engaged in interstate commerce and has held itself out to the general public as offering transportation and warehousing services for a fee. The fact that a company holds itself out to the general public by offering transportation services for a fee does not mean that it operates as a common carrier. Since November 21, 2003, Saddle Creek has possessed cargo liability insurance and has made said insurance available to all of its shippers. As a contract carrier, the fee, terms, conditions of carriage, and the scope of liability can be specifically defined, limited, and restricted by the contract between the shipper and carrier. See 49 U.S.C. § 14101 (b). Between December 1, 2003, and October 31, 2006, Saddle Creek purchased trucks, trailers and parts for use on said vehicles in Florida and paid sales tax on all purchases. However, the parties stipulated that the time period at issue is March 20, 2004, through August 20, 2006. Effective March 9, 2007, Saddle Creek obtained its Common Carrier Certificate from the FMCSA. The Common Carrier Certificate authorized Saddle Creek to engage in transportation as a "common carrier" of property (except household goods) by motor vehicle in interstate or foreign commerce. On March 12, 2007, Saddle Creek applied to the Department for a refund of $175,023.99 for sales tax paid on trucks, trailers and parts thereof, during the period of March 20, 2004, through August 20, 2006. Saddle Creek claimed a refund based on the partial exemption from sales tax provided to interstate carriers in Subsection 212.08(9), Florida Statutes (2005). The Department denied Saddle Creek's Application for Refund, because Saddle Creek was not licensed/registered or classified by FMCSA as a common carrier during the time period for which it was requesting a refund. In reaching this decision, the Department relied on Florida Administrative Code Rule 12A-1.064,3 which implements and interprets Subsection 212.08(9)(b), Florida Statutes (2005). The Department's interpretation of the above- referenced rule is that entitlement to the partial exemption authorized in Subsection 212.08(9)(b), Florida Statutes (2005), requires that the motor carrier engaged in interstate commerce as a common carrier be licensed as a common carrier by the U.S. Department of Transportation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Revenue, enter a final order upholding it denial of Petitioner, Saddle Creek Transportation, Inc.'s, application for a partial refund of sales taxes. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 1st day of April, 2009.
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.
