Findings Of Fact Respondent, Dick's Auto Sales, Inc., is the holder of a motor vehicle dealer license issued by the Petitioner, Department of Highway Safety and Motor Vehicles ("the Department"). Richard R. Borst ("Borst") is the president of Respondent Dick's Auto Sales, Inc., and one of two stockholders in the company. At all times material hereto, the Respondent maintained a business address at 110 N.W. 18th Avenue, Delray Beach, Florida. Borst also operates an auto parts business at the same address as the motor vehicle dealership. On or about June 9, 1989, Borst appeared before the Honorable James C. Payne, U.S. District Judge for the Southern District of Florida, and entered a plea of guilty to aiding and abetting the transportation of stolen motor vehicle parts in violation of Title 18 U.S.C. Section 2314 & 2 in Case Number 89-6032- Cr-PAYNE-(01), United States v. Richard Borst,. Based on the plea entered and the plea agreement then before the court, Borst was adjudicated guilty in a Criminal Judgment dated June 28, 1989. Imposition of a sentence of confinement was suspended and Borst was placed on probation for a period of three (3) years. Borst was also fined Fifty Dollars ($50.00). Borst's conviction arose in connection with his purchase of auto parts from a "chop shop" (i.e., an operation which dismantled stolen cars and sold the parts,) in the Connecticut area. The purchase took place in May, 1987. In April, 1988, Borst met with state and federal investigators and agreed to fully cooperate with a task force set up to investigate the operation. He also agreed to testify against the individuals involved. While Borst was in Connecticut waiting to testify, the other defendants entered guilty pleas. In Respondent's initial dealer license application dated September 24, 1987, Borst stated under oath that he was not facing criminal charges. On April 27, 1989, Borst, as president of Respondent, signed an application to renew Respondent's license, stating under oath: Under penalty of perjury, I do swear or affirm that the information contained in this application is true and correct and that nothing has occurred since I filed my last application for a license or application for renewal of said license, as the case may be, which would change the answers given in such previous application. On January 18, 1989, Borst and his attorney signed a "Consent to Transfer of Case for Plea and Sentence", in United States v. Richard Borst, Criminal No. B-89-6-(TFGD), United States District Court for the District of Connecticut (the "Connecticut Case"). This document expressly acknowledges that an Information was pending against Borst in the United States District Court for the District of Connecticut, that Borst wished to plead guilty to the offense charged, and that he consented to the disposition of the case in the Southern District of Florida. The Information entered in the Connecticut Case, charged Borst with violation of 18 U.S.C. Sections 2314 and 2, for transporting motor vehicle parts in interstate commerce knowing them to have been stolen. The date of this Information was not established, but it was clearly on or before January 18, 1989. Thus, sometime prior to January 18, 1989, Borst was charged with criminal violations of 18 U.S.C. Sections 2314 and 2, and these charges were pending when Borst signed and filed Respondent's renewal application for 1989. Petitioner contends that Borst's conviction is directly related to the business of being a motor vehicle dealer, especially since Borst operates a motor vehicle parts business in conjunction with his motor vehicle dealership. However, the evidence presented provided only a very limited factual background regarding the conviction, none of Petitioner's representatives talked with the investigators or prosecutors in the criminal case and no evidence was presented regarding the Respondent's role in the transactions leading to Borst's conviction. At the time of the hearing, Borst was fifty-three (53) years of age. Within the last twenty-four (24) months, he has suffered numerous health problems including a nervous breakdown which necessitated an eighteen (18) week period of confinement to his residence for rest. He currently undergoes twice- weekly therapy with a psychiatrist and has been taking an antidepressant prescription. In addition, in October of 1989, he was admitted to the hospital for a heart condition. Subsequently, a balloon angioplasty was performed on him. He was later re-admitted to the hospital for five (5) days as a result of post surgery complications. He is also an insulin dependent diabetic. He attributes most of these health problems to the stress and turmoil of his criminal conviction. In light of his emotional and physical condition, he has been required to reduce his work load. Borst has been actively trying to sell the existing business in order to retire the outstanding indebtedness on the business and the property on which it is located. There is no evidence that the Respondent and/or any of its duly elected officers or stockholders have ever been subjected to any other complaints and/or investigations by the Department or by any other investigatory or regulatory agency during the past seventeen (17) years since it was originally licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a Final Order which finds Respondent not guilty of the violation alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990. J. STEPHEN MENTON 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 5th day of June, 1990.
Findings Of Fact The parties stipulated to the facts set forth in paragraphs 1-5, below. Stipulated Facts James Phillips is the president and sole shareholder of the Respondent, Sunshine Auto Sales, Inc. The Respondent's place of business is located at 2050 North West 36 Street, Miami, Florida 33142. The Respondent was issued motor vehicle dealer license number 7VI- 005928 on May 1, 1987. The Petitioner's order summarily suspending Respondent's license was dated September 17, 1987, and was served on Respondent on or about November 9, 1987. On December 22, 1987, the Circuit Court for the 11th Judicial Circuit, in and for Dade County, Florida, entered an emergency injunction against enforcement of Petitioner's Order of Summary Suspension, contingent upon the posting of a $2500 bond by Respondent. The bond was posted on March 31, 1988. Other Facts On November 17, 1976, Respondent's president and sole shareholder, James Phillips, executed a sworn affidavit as part of the application for a motor vehicle dealer license. In that affidavit, he stated that no partner or corporate officer of the Respondent had ever been arrested or convicted of a felony. In subsequent annual renewal applications for the years 1977-84, Phillips stated that all terms and conditions as set forth in the original application were correct. In actuality, Phillips was arrested for breaking and entering, theft and rape in 1956. In 1960, he was arrested for aggravated assault. In 1972, he was arrested for possession of a stolen motor vehicle. Grand larceny was the subject of his arrest in 1976. In 1982, he was arrested for aggravated battery. Phillips' statement that he interpreted this language on the application and renewal forms to be applicable only to the corporation itself is not credited due to his demeanor while testifying and the clarity of the statement on the application requiring such disclosure. The Petitioner's policy is not to deny or revoke licenses simply on the basis of an arrest record of the applicant or licensee. Instead, when the information is correctly provided by applicants or licensees, a further investigation is made by the Petitioner to determine if there has been a conviction of a crime meriting suspension or denial of a license. When Petitioner becomes aware that an applicant or licensee has falsely answered an application regarding previous arrests, the policy of Petitioner is to deny the application for licensure or institute revocation action against a licensee on the theory that such falsification shows a lack of honesty in the applicant or licensee. On February 24, 1986, and May 20, 1986, James Phillips received warning letters from the Department reminding him that failure to apply for title or to file for transfer of title within 20 days following delivery of a vehicle to a purchaser is a violation of Florida law. In June and July of 1987, an employee of Petitioner, Helen Wandell, made numerous attempts to obtain information from Respondent regarding a particular complaint against Respondent. Information was sought by Wandell regarding the identity of the vehicle which was the subject of the complaint. She telephoned Respondent's facilities on June 10, 11, 12, and 16, 1987, during regular business hours and received no answer. On June 17, 1987, Wandell went to the Respondent premises during regular business hours and found the facility closed. She left a note and James Phillips called her the following day. He gave her information concerning the subject vehicle which proved to be incorrect. Again, Wandell attempted to contact Respondent's establishment by telephone on June 22, and 23, 1987, but did not get an answer. She telephoned again on July 24, 1987, and spoke with Phillips. In the course of the conversation, he informed Wandell that he could not provide the vehicle identity information she sought. He further warned her not to call again, cursed her and threatened to kill her. Madeline Fils-Aime does not read or understand English very well. On April 8, 1987, she entered into a parol agreement to buy a 1981 Mercury automobile from Respondent. The agreed upon price, as established by testimony of Fils-Aime, was $750. This amount was to be paid in installments as the money became available to Fils-Aime. Until the total amount of $750 was paid, the car would continue to be owned by and remain in the Respondent's establishment. On April 8, 1987, Fils-Aime paid $160 to Robert Sayre, James Phillips' stepson, at Respondent's establishment toward the cost of the automobile. She received a receipt from Sayre. The receipt carried the notation "no refunds" and "sold as is." The receipt also carried a notation that the remainder of the funds would be due on April 15, 1987. Fils-Aime returned to Respondent's establishment on April 16, 1987, paid another $100, received another receipt signed by Sayre carrying a notation that the remainder would be due on April 26, 1987. This receipt also carried the notation "no refunds." Fils-Aime returned to the Respondent establishment again on April 21, 1987, and paid another $40 on the car. This time she received a receipt signed by Thomas Phillips, son of James Phillips, which carried the notation that the balance would be due on May 7, 1987. Another payment of $100 was made by Fils-Aime on May 4, 1987. Another receipt bearing the signature of Robert Sayre was received. A new balance due date of May 14, 1987, was shown on this receipt. Fils-Aime returned at a later date to make a subsequent payment, but the Respondent's establishment was closed. Approximately six weeks after the May 4, 1987, payment, Fils-Aime returned to Respondent's establishment to learn that the car for which she had been making payments was gone. Testimony of James Phillips establishes the sale of the vehicle to another person. Phillips also readily admitted knowledge of the payments made by Fils-Aime and the practice of granting extensions to her of the due date for the total balance at the time of each payment. Since his clientele is poor, he uses the "lay away" plan on occasion to sell vehicles to individuals like Fils-Aime. In spite of her demands, he did not return Fils- Aime's previous payments to her. At the time of the May 4, 1987, payment, Phillips gave Fils-Aime an envelope to use in the event the Respondent facility was closed on her return to make a future payment. He instructed her to leave the envelope with the body shop next to Respondent's establishment. A contractual document offered in evidence at hearing by Respondent to substantiate James Phillips version of the parol agreement with Fils-Aime is not credited with any probative value. The document appears unsigned by anyone and the portion of the page where Fils-Aime would have signed is conveniently torn off and missing. Additionally, Fils-Aime denied knowledge of the document. After receipt of a complaint by Fils-Aime, the Petitioner's employee was denied access to Respondent's premises to inspect Respondent's records on July 21, 1987. The request was made during reasonable business hours and within the business hours posted on the fence at Respondent's establishment. On August 31, 1987, Respondent sold a 1979 automobile to Gloria Little. Respondent did not apply for title for Ms. Little. She went to the tag agency herself because there was no one at Respondent's facility to go with her. She was unable to obtain the title transfer and contacted Petitioner's offices. A telephone call by Petitioner's employee resulted in an individual from Respondent's establishment being made available to assist and complete the title transaction on December 16, 1987. The Respondent did not apply for title transfer to a 1975 vehicle sold to Rafael Castillo on August 8, 1987. After being contacted by a Petitioner employee, Respondent applied for the title transfer on December 16, 1987. On December 29, 1987, Respondent sold a 1981 automobile to Kimberely DeNunzio. Title application to the vehicle was made in February, 1988, and issuance of the title to DeNunzio occurred February 24, 1988. The Petitioner's Order of Summary Suspension of Respondent's motor vehicle license was in effect at the time of this sale.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's license and denying the application for renewal of same. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of July, 1988. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5616, 88-2528 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS The Petitioner's proposed findings consisted of paragraphs erroneously numbered. Those paragraphs, 25 in number, have been properly numbered and are addressed as follows: 1-3. are included in findings 1-3, respectively. 4-7. are included in findings 12-18. 8-10. are included in finding 21. 11-13. included in finding 22. 14-16. included in finding 23. 17. included in finding 20. 18-19. included in finding 11. included in finding 6. included in finding 7. included in finding 8. 23-24. included in finding 9. 25. included in finding 10. RESPONDENT'S PROPOSED FINDINGS The Respondent's proposed findings were likewise erroneously numbered. Numbering has been corrected and the 36 paragraphs are addressed as follows. 1-3. included. 4-15. rejected, unnecessary to result reached. 16. included in finding 12. 17-18. included in finding 6. 19-27. rejected, unnecessary. 28-29. addressed in finding 5. rejected, on basis of credibility. included in finding 17. 32-36. rejected as unnecessary. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel State of Florida, Department of Highway Safety and Motor Vehicles Department of Legal Affairs Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Seril L. Grossfeld, Esquire 408 South Andrews Avenue Suite 101 Fort Lauderdale, Florida 33301 Charles J. Brantley Director, Division of Motor Vehicles Room B439 Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
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.
The Issue Whether two policy statements issued by Respondent, TL-10 and RS/TL 14-18, are unadopted rules, as defined in section 120.52(20), Florida Statutes, that violate section 120.54(1)(a), Florida Statutes.3/
Findings Of Fact The Parties Petitioner is a co-trustee of the Sparkhill Trust (the "Trust"), which was created in July 2009. Opinicus Sentinel, LLC ("Opinicus Sentinel") currently is a co-trustee of the Trust, and has been a trustee of the Trust since its creation. Barbara Williams is the manager of Opinicus Sentinel, and has served in that capacity since its creation.8/ Petitioner was appointed as a trustee of the Trust on October 11, 2016.9/ The Trust owns a 2001 Porsche 996/911 Turbo motor vehicle (hereinafter, "Vehicle"). Solely for purposes of this proceeding,10/ the Vehicle Identification Number ("VIN") of the Vehicle is WP0ZZZ99Z1S682830, as alleged in the Amended Petition. As of the final hearing, the Vehicle was located in Germany. During all times relevant to this proceeding, the Vehicle was located in a foreign country. Respondent is the state agency responsible for, among other things, implementing and administering chapter 319, Florida Statutes, governing the issuance of certificates of title for motor vehicles. See § 319.17, Fla. Stat. Background and Events Giving Rise to This Proceeding On or about September 30, 2014, Opinicus Sentinel——at that time, the sole trustee of the Trust——submitted an application consisting of completed Form 8204011/ and supporting documentation to the Lee County Tax Collector ("Tax Collector")12/ on behalf of the Trust, requesting issuance of a certificate of title for the Vehicle in the name of the Trust. The application included a letter from a motor vehicle dealer in London, Ontario, Canada, stating that the dealer had inspected the Vehicle and that the Vehicle's VIN is WP0ZZZ99Z1S682830. On or about October 22, 2014, the Tax Collector sent a letter to Ms. Williams, as manager of Opinicus Sentinel, stating that the application for certificate of title could not be processed "because all used vehicles coming into Florida from a foreign country must have the Vehicle Identification Number verified by a Division of Motorist Services Compliance Examiner." When asked for further explanation, the Tax Collector responded by electronic mail ("email"): The Lee County Tax Collector is a Constitutional Office that provides the services of the Department of Highway Safety and Motor Vehicles (DHSMV). As such, we are bound by both statutory and department procedural guidance. Procedures often are entitled Technical Advisories. The technical advisory relied upon by this office indicates that all used vehicles coming into Florida from a foreign country must have the VIN verified by a Division of Motorist Services Compliance Examiner as referenced in TL-10 in effect on the date the correspondence was drafted. Email from Tax Collector to Barbara Williams, dated October 27, 2014 (emphasis added). This email directed Ms. Williams to contact Respondent if the trustee wished to challenge the denial of the application for certificate of title for the Vehicle. On November 3, 2014, Ms. Williams contacted Respondent, asserting that the Tax Collector's denial of the application for a certificate of title violated section 319.23(3)(a)2, Florida Statutes. Also on that date, Ms. Williams filed a Petition for Administrative Hearing with Respondent on behalf of Opinicus Sentinel, challenging TL-10 as an invalid and unadopted rule pursuant to section 120.56(4).13/ On November 24, 2014, Respondent sent a letter to Ms. Williams, refusing to issue the requested certificate of title. The letter stated: After researching the issue identified in your letter, the Department stands by the decision made by . . . [the Lee County Tax Collector]. Section 319.23(a)(2), Florida Statutes, states that, '[a]n appropriate departmental form evidencing that a physical examination has been made of the motor vehicle by the owner and by a duly constituted law enforcement officer in any state, a licensed motor vehicle dealer, a license inspector as provided by s. 320.58, or a notary public commissioned by this state and that the vehicle identification number shown on such form is identical to the vehicle identification number shown on the motor vehicle. Letter from Respondent to Barbara Williams, dated November 24, 2014 (emphasis added). The letter further stated: However, section 319.23(11), Florida Statutes, states that, '[t]he Department shall use security procedures, processes, and materials in the preparation and issuance of each certificate of title to prohibit to the extent possible a person's ability to alter, counterfeit, duplicate, or modify the certificate of title.' In the case at bar, the Department is choosing to implement the language found in 319.23(11) to ensure that the certificate of title is issued correctly. The Department has the authority to require VIN verifications on vehicles entering the state of Florida from a foreign country before a title can be issued. In subsequent correspondence to Ms. Williams, dated December 18, 2014, Respondent stated: I can only again point you to s. 319.23(11). Since April of 2000 the Department's policy is to require all used vehicles coming into Florida from a foreign country to have the VIN verified by a Motor Vehicle Field Office Compliance Examiner prior to being titled. * * * I have included a copy of the Department's Technical Advisory, TL 14-18, which explains the Department's policy in depth.[14/] On December 18, 2014, Respondent referred Opinicus Sentinel's Petition for Administrative Hearing to DOAH. The case was assigned DOAH Case No. 14-6005. On March 3, 2015, Opinicus Sentinel withdrew the petition, and the DOAH case file for Case No. 14-6005 was closed. Notwithstanding that Case No. 14-6005 was pending at DOAH, on February 25, 2015, Respondent sent Ms. Williams a letter dismissing the previously-filed petition for administrative hearing with leave to file an amended petition. The letter also asserted an additional basis15/ for Respondent's denial of the certificate of title for the Vehicle, specifically: Because the vehicle to be titled is not currently in Florida, clearly the vehicle will not be operated on the roads of Florida. Accordingly, the vehicle cannot be registered in Florida and the titling provisions of Chapter 319, Fla. Stat., do not apply. Therefore, the application for title you submitted to the Lee County Tax Collector pursuant to section 319.23, Fla. Stat. will not be approved. While DOAH Case No. 14-6005 was pending, Stephen J. Williams, as beneficiary of the Trust, filed a Petition for Administrative Hearing challenging both TL-10 and RS/TL 14-18 as unadopted and invalid rules pursuant to section 120.56(4). That case was assigned DOAH Case No. 15-0484 and ultimately was dismissed by Final Order dated March 25, 2015.16/ As previously noted, on October 11, 2016, Petitioner was appointed as a co-trustee of the Trust. On October 17, 2016, Petitioner, as a trustee of the Trust, initiated this proceeding by filing a Petition for Administrative Hearing, again challenging both TL-10 and RS/TL 14-18 as unadopted and invalid rules. As noted above, the scope of this proceeding subsequently was narrowed to eliminate the challenge to the substantive invalidity of TL-10 and RS/TL 14-18, so that the sole issue in this proceeding is whether TL-10 and RS/TL 14-18 are unadopted rules that violate section 120.54(1)(a). The Challenged Statements: TL-10 and RS/TL 14-18 TL-10, identified by the Tax Collector as the original basis for denial of issuance of the certification of title for the Vehicle, went into effect on April 30, 2014. The portion of TL-10 pertinent to this proceeding states: IV. MISCELLANEOUS INFORMATION * * * B. Vehicle identification number (VIN) verifications are to be completed by the applicant. * * * 2. VIN verification may be done by one of the following: * * * c. Florida Division of Motorist Services (DMS) Compliance Examiner, DMS or tax collector employees. * * * NOTE: All USED vehicles coming into Florida from a foreign country, including dealer transactions, MUST have the VIN verified by a DMS Compliance Examiner. Technical Advisory RS/TL 14-18 is titled "Motor Vehicles Coming Into Florida from a Foreign Country." It states in pertinent part: All used vehicles coming into Florida from a foreign country (including dealer transactions) must have the vehicle identification number verified by a Motor Vehicle Field Office Compliance Examiner prior to being titled. * * * The Regional Motor Vehicle Field Office staff will perform an inspection of the vehicle that includes verification of the public VIN, confidential VIN or secondary VIN, manufacturer’s label or letterhead letter that states compliance with US vehicle standards, computer checks of NMVTIS/NICB data-bases, and a review of documentation showing vehicle clearance through US Customs (if applicable). Copies of these documents, including a copy of the completed form HSMV 84044, will be maintained in the regional office. The VIN verification will be completed by the compliance examiner on a form HSMV 84044, in lieu of a form HSMV 82040 or HSMV 82042. The compliance examiner will give the customer the original required documentation (including the original complete form HSMV 84044). The customer must submit all documentation to a tax collector’s office or license plate agency in order for him/her to apply for a Florida Certificate of Title. The undisputed evidence establishes that neither TL-10 nor RS/TL 14-18 have been adopted as rules pursuant to the procedures prescribed in section 120.54. Respondent did not present any evidence showing that rulemaking was not practicable or feasible. Respondent's Position Respondent admitted, in its Amended Responses to Requests to Admissions served on Petitioner on November 21, 2016, that TL-10 and RS/TL 14-18 are intended to be, and are, of general application; that TL-10 and RS/TL 14-18 implement, interpret, or prescribe law or policy and/or describe the procedure or practice requirements of Respondent; and that TL-10 and RS/TL 14-18 have not been, and are not published in the Florida Administrative Code. Additionally, Respondent acknowledges that neither TL-10 nor RS/TL 14-18 have been adopted as rules. Respondent takes the position that Petitioner lacks standing to challenge TL-10 and RS/TL 14-18 as unadopted rules. Specifically, Respondent asserts that Petitioner has not suffered a "real or immediate injury in fact" for purposes of having standing because although the Tax Collector and Respondent referred the Trust to TL-10 and RS/TL 14-18 as grounds for denial of the certificate of title, they were not the "ultimate grounds" on which the Trust was denied a certificate of title. On this basis, Respondent asserts that it did not apply TL-10 or RS/TL 14-18 to Petitioner, so Petitioner did not suffer injury as a result of application of these statements. Respondent further asserts that because Petitioner cannot meet the requirements in section 319.23 to be entitled to issuance of a certificate of title for the Vehicle, Petitioner's claimed injury in this proceeding is speculative and hypothetical. To this point, Respondent argues that Petitioner's alleged injury in this proceeding is speculative because the Trust has not satisfied the requirements of section 319.23 for purposes of being entitled to issuance of a certificate of title. Specifically, Respondent argues that because the Vehicle is not physically present in the state of Florida, it is not being operated on the roads of Florida, and because it is not being operated on the roads of Florida, it is not required to be registered or to obtain a certificate of title——and, indeed, cannot be registered and a certificate of title issued until it is physically present in Florida. Accordingly, Respondent reasons, until the Vehicle is physically present in Florida and thus subject to registration and licensure requirements, TL-10 and RS/TL 14-18 were not, and cannot be, applied to determine whether the certificate of title for the Vehicle should be issued. Also on this point, Respondent argues that Petitioner's alleged injury is speculative because Petitioner did not meet the requirement in section 319.23 that a physical examination of the Vehicle be made by the owner and a motor vehicle dealer licensed in the state of Florida. Respondent further asserts that Petitioner's alleged interest does not fall within the zone of interest of this proceeding. Specifically, Respondent argues that because the Vehicle is located in a foreign country, Petitioner is unable to establish that the Vehicle must be registered and a certificate of title issued in Florida. Respondent concludes: Because Petitioner cannot meet the burden of establishing that the motor vehicle in question is required to be licensed and registered in Florida, and because he failed to satisfy the application requirements of section 319.23(3)(a)(2), he cannot meet the burden of establishing that any interest in obtaining a certificate of title for the vehicle in question is within the 'zone of interests' to be protected and regulated.
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
