Findings Of Fact The Parties H. B. Walker, Inc. is in the business of demolition, excavation and land clearing. The company transports heavy equipment to and from job sites and transports debris from job sites and is a commercial motor carrier. The company maintains a terminal for its motor vehicles at 1913 Bruton Boulevard, Orlando, Florida. All commercial motor carriers operating over the public highways in Florida are subject to certain federal regulations governing driver and vehicle safety and record-keeping. Those federal regulations are adopted by reference in the Florida Statutes, which statutes are amended from time to time to address a later version of the federal regulations. The DOT has the authority and responsibility to enforce those safety and record-keeping requirements, which it does, in part, through terminal audits, sometimes called "compliance reviews". The Process On April 18, 1995, after conferring with his supervisor, Officer Terron Lindsey, a seasoned agency motor carrier compliance officer, visited H. B. Walker's terminal and conducted a review of Walker's records. As a result of the review, Officer Lindsey found multiple violations of the record-keeping requirements of 49 CFR, parts 391 and 396. He advised Walker's personnel that he would return in 60 - 90 days and no penalty would be imposed if the violations were corrected. On a follow-up audit on July 12 and 13, 1995, Officer Lindsey found that some, but not all corrections were made. On August 1, 1995, the agency issued to H. B. Walker a Safety Report and Field Receipt stating the violations and citations to the federal rules and assessing penalties in the total amount of $4,000. Officer Lindsey delivered the Safety Report and Field Receipt to Walker's terminal and was told that the penalty would not be paid. Walker did not pay the $4,000, but protested the agency's findings to the Commercial Motor Carrier Board (Board). By 1995 the DOT had some brief experience with conducting terminal audits and assessing penalties for record- keeping violations, but this was the first time that a motor carrier had refused to pay the penalty prior to presenting its protest to the Board. Captain E. A. Brown, Officer Lindsey's supervisor, called the Tallahassee headquarters of DOT's motor carrier compliance office and the DOT's legal office to find out how to proceed. As motor carriers are aware, DOT exercises authority in road-side safety inspections to require immediate payment of any penalty or to impound the vehicle when a compliance officer issues a citation. Based on DOT's existing rules, Chapter 18 of the Motor Carrier Compliance Manual and experience with road-side safety enforcement, Colonel McPherson advised Captain Brown that the agency had authority to impound an H. B. Walker vehicle. After receiving directions from his headquarters, Captain Brown wrote letters to H. B. Walker and orally informed Walker's employee, John Valois, that if the penalty were not paid, a vehicle would be held, consistent with past enforcement actions on non-payment of penalties. On August 28, 1995, at the direction of Captain Brown, Officer Rick Hunter detained one of Walker's vehicles and impounded it at a DOT maintenance yard. In the meantime, after the Board received H. B. Walker's request for a hearing on the violations, the Board's Executive Secretary, Elyse Kennedy, telephoned Walker's counsel and told him that the Board could not hear his case until the penalties were paid, or a bond was posted. Later, after confirming with DOT legal staff, Ms. Kennedy sent a letter advising Walker's counsel that the Board could schedule and hear the case, as the impoundment of a vehicle was equivalent to payment of the penalties or the bond. H. B. Walker's case was scheduled with consultation with Walker's attorney. On the appointed date, when no representative from H. B. Walker appeared, the Board considered written material submitted by Walker's attorney and testimony from Officer Lindsey. The Board notified H. B. Walker of its denial of relief in a letter dated September 15, 199[5]. The letter states in pertinent part: Dear Sir: Pursuant to Section 316.545, Florida Statutes, the Commercial Motor Vehicle Review Board at its meeting of July 13, 199[5], carefully reviewed all of the information placed before it and determined that a refund was not appropriate in this case for the following reason. After hearing testimony of Officer Lindsey and Captain E. A. Brown, the Board felt that H. B. Walker, Inc. was not in compliance with CFR 391.51; CFR 391.43; CFR 391.103 and CFR 396.3. Pursuant to Rule 14A-1.012, Florida Administrative Code, you are entitled to request a rehearing in this matter by filing such a request with the Executive Secretary within ten (10) days of the receipt of this letter. Pursuant to Chapter 120, Florida Statutes, you have the right to either a formal or an informal hearing. A formal hearing will be granted where disputed issues of material fact exist; in other words, where you disagree with the specific facts contained in this letter upon which the Commercial Motor Vehicle Review Board bases its intent to deny your request for refund. All requests for either type of hearing must be in writing. * * * You are hereby notified that the conclusion contained in this letter shall become final with 21 days of receipt of this letter, unless, you file a written request for an informal or formal Administrative hearing pursuant to Section 120.57, Florida Statutes, with the Clerk of Agency Proceedings within 21 days. * * * Walker's timely request for a formal hearing tolled the Board's conclusion. The 1995 Rules In 1995, at the time of the H. B. Walker terminal audit and ensuing Board meeting, rules 14A-1.004 and 14A-1.007, Florida Administrative Code, provided, in pertinent part: 14A-1.004 Meetings . . . Only penalties which have been paid or for which a Section 316.545 bond has been posted, will be considered by the Review Board. 14A-1.007 Timely Written Request for Meeting Any person who is aggrieved by the imposition of a civil penalty imposed upon the provisions of section 316.545 or 316.3025, Florida Statutes, after payment of the penalty, or posting a section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office in writing within 60 days of the date of the penalty notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested . . . . At the relevant period, rules 14-87.011(1) and 14-87.002 provided, in pertinent part: 14-87.011 Definitions * * * "Citation" means: A Load Report and Field Receipt issued to the owner or driver of a commercial motor vehicle for violation of weight and vehicle registration laws: or A Safety Report and Field Receipt issued to the owner or driver of a commercial motor vehicle for violation of safety laws and regulations and permit violations; or The penalty portion of an I. R. P. Trip Permit & Temporary Fuel Use Permit issued to the owner or driver of a commercial motor vehicle in violation of the fuel use tax requirements contained in Chapter 207, Florida Statutes. 14-87.002 Penalties and Fees Due Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. . . The 1996 Amendments On June 7, 1996, DOT published notices of rule-making, proposing to amend various provisions of rule chapters 14-87, 14-108 and 14A-1. On July 16, 1996, the agency filed the amendments to Chapter 14A-1 for adoption, and those amendments became effective August 5, 1996. The amendments to Chapters 14-87 and 14-108, Florida Administrative Code, became effective in September 1996. The cumulative effect of these amendments is to distinguish between the penalty process for road violations and the process for violations found during a terminal audit/compliance review. The amendments provide that a commercial motor carrier who has been assessed penalties for violations found during a terminal audit may obtain a Review Board hearing prior to payment or posting a bond. The amendments also distinguish between a "notice of non- compliance" issued after a terminal audit to advise the carrier of violations and the penalties that will be assessed if the violations are not corrected, and a "notice of violation" which identifies the violations and assesses penalties. DOT's amendments to chapter 14-87, Florida Administrative Code, are, in relevant part, as follows: (Underlined material has been added, material struck through has been deleted.) 14-87.0011 Definitions * * * "Penalty" means a monetary amount prescribed by statute or Department rule as a civil penalty to be assessed administratively for a violation of a commercial motor vehicle law pursuant to the issuance of a citation or a notice of violation. * * * "Notice of Violation" means a notice of violation as defined by Rule 14-108.002(5). * * * 14-87.002 Penalties and Fees Due; Detaining and Impounding Motor Vehicles When Citation or Permit Issued Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. Penalties due under chapter 14-108 are due in accordance rule 14-108.004. All penalties and fees not guaranteed by a Surety Bond must be paid to the officer or inspector issuing the citation or permit or detaining the vehicle for nonpayment of penalties prescribed under rule 14-108.005 prior to further operation of the affected commercial motor vehicle on the roads of this State. Payment may be in cash, by cashier's check or by money order. In the event that payment is not made when payment is due, the motor vehicle will be impounded in accordance with sections 316.3025 or 316.545, Florida Statutes. When a Surety Bond has been properly filed and accepted by the Department, the vehicle will be released upon presenting written evidence of the surety bond to the officer or inspector detaining the vehicle the citation or permit will be issued to the owner or driver of the vehicle, and payment must be remitted to the officer or inspector who issued the citation or permit within ten working days of the release of the vehicle date of issuance. Company checks may be accepted when a proper Surety Bond is on file. In the event that payment is not made within ten working days of release of the vehicle, the Department will take action to recover the penalty amount from the surety bond. Motor vehicles impounded in accordance with this rule will be released upon payment of the penalty or the posting of a bond pursuant to Section 316.545, Florida Statutes, or upon a determination by the Commercial Motor Carrier Review Board to cancel or revoke the penalty or upon the issuance of a Department order setting aside the penalty as the result of a proceeding held pursuant to section 120.57, Florida Statutes. Motor vehicles released as a result of the posting of a bond under section 316.545, Florida Statutes, remain subject to the lien imposed by that statute. The Department's amendments to chapter 14-108, Florida Administrative Code, are, in relevant part, as follows: 14-108.002 Definitions * * * "Notice of Noncompliance" means a notice issued to a motor carrier that advises the motor carrier of violations found during a terminal audit/compliance review and identifies the penalties that will be assessed if the violations are not corrected within 60 days of receipt of the notice. "Notice of Violation" means a written notice which identifies violations of safety laws and regulations found during the conduct of a terminal audit/compliance review and assesses penalties pursuant to these rules. Such a notice will be issued after violations are found and penalties are to be assessed under this Chapter. (5) "Penalty" means a monetary amount prescribed by statute as a civil penalty to be assessed administratively for violation(s) of safety laws and regulations found during the conduct of a terminal audit/compliance review. (6) "Terminal Audit" or "Compliance Review" means an onsite investigation at a motor carrier's terminal or office of property carrier or passenger carrier records such a driver's hours of service, maintenance and inspection, driver qualification, commercial drivers license requirements, financial responsibility, accidents and other safety and business records to determine compliance with the safety laws and regulation. The investiga- tion will compliance review may result in the initiation of an enforcement action to include the assessment of the applicable penalty(ies) prescribed by statute and this rule chapter. 14-108.003 Applicability; Compliance Required * * * Any person or motor carrier who operates or causes or permits nonpublic- sector buses to be operated on any road, street, or highway open to travel by the public in the transportation of passengers shall be in compliance with the applicable safety laws and regulations contained in section 316.70, Florida Statutes, and Title 49 C.F.R. Parts 382, 385 and 390 through 397 301, 393, 394 and 396. Any person or motor carrier found to be in violation of these rules during the conduct of a terminal audit or compliance review shall be subject to the penalties herein described. The penalties prescribed by rule 14-108.105 will be waived and a notice of violation will not be issued if, as a result of the first terminal audit or compliance review conducted of a Motor Carrier, the Motor Carrier corrects the described violations within 60 days after receipt of a written notice of noncompliance. Penalties for the following violations will not be waived under the above provision, even if they are found during the first terminal audit or compliance review and are corrected immediately. Failure to comply with controlled substance testing requirements Exceeding driver hours of service. Violations involving hazardous materials. Lack of valid commercial driver's licenses, including revoked, suspended or cancelled licenses. 14-108.004 Administration: Enforcement. All penalties imposed and collected in accordance with these rules shall be paid to the treasurer, who shall credit the total amount collected to the State Trans- portation Trust Fund in accordance with section 316.3025(5)(b), Florida Statutes. Penalties assessed as a result of a terminal audit are due and shall be paid no later than ten working days after receipt of the notice of violation, unless a timely appli- cation is made to the Commercial Motor Vehicle Review Board under rule 14A-1.007, in which case the penalty (or the remaining part thereof) is due and shall be paid no later than ten working days after receipt of a written decision by the Review Board sustaining the penalty in whole or in part. Whenever any person or motor carrier violates the provisions of these rules and becomes indebted to the State because of such violation(s) and refuses to pay the appropriate penalty, the penalty becomes a lien upon the property including the motor vehicles of such person or motor carrier and may be foreclosed by the State in a civil action in any court of this state as prescribed by section 316.3025(4), Florida Statutes. Motor vehicles of the person or motor carrier will be detained and impounded for nonpayment in accordance with Rule 14-87.002. The adopted amendments to Chapter 14A-1, Florida Administrative Code, are, in relevant part, as follows: 14A-1.004 Meetings The Review Board shall sit as an admin- istrative body in equity to consider testimony or written documents in mitigation, extenuation, modification, cancellation, revocation, or maintenance of any penalty or penalties imposed pursuant to 316.540, 316.545, or 316.3025, Florida Statutes. Only penalties which have been paid or for which a section 316.545 bond has been posted, will be considered by the Review Board. However, this provision shall not prevent the owner of a motor vehicle that has been impounded for nonpayment from receiving a Review Board hearing. Further, as provided in Rule 14-108.004, a motor carrier may obtain a Review Board hearing on penalties assessed as a result of a terminal audit prior to payment or posting of a bond. Review Board meetings may be scheduled as often as determined necessary, based on a sufficient number of penalties being avail- able for review to justify the expense of hold a meeting. The Review Board shall meet not less than six times per year. Location of meetings shall be determined by the Review Board. Upon timely written request, cases involving Florida based persons will be scheduled at the next meeting held in their geographic area. However, cases involving requests for Review Board conside- ration of unpaid penalties imposed for violations found during a terminal audit will be scheduled for the next meeting regardless of location. Upon timely written request, cases involving non-Florida based persons will be scheduled at the next meeting of the Review Board. Persons may request the scheduling of their case at a specific city at which the Review Board meets. Such requests must be in writing to the Commercial Motor Vehicle Review Board, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0450. * * * 14A-1.007 Timely Written Request for Meeting Any person who is aggrieved by the imposition of a civil penalty imposed upon the pro- visions of Section 316.545 or 316.3025, Florida Statutes upon compliance with Rule 14A-1.004, after payment of the penalty, or posting a Section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office in writing within 60 days of the date of the Penalty Notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested. The request shall set forth in detail the basis of the protest and all matters to be considered so that the Review Board can be prepared to discuss the issue at the meeting if the protestor does not appear. The request must be received within 60 days. A written request for Review Board consideration of a penalty imposed for violations found during a terminal audit must be submitted and received within ten working days after receipt of the notice of violation in order to be considered timely and such written request must be submitted via hand-delivery or certified mail. 14A-1.008 Appearances Those persons, firms or corporations who have been assessed a penalty for violations of Section 316.540, 316.545, or 316.3025, Florida Statutes, and have complied with the requirements of Rules 14A-1.004 and 14A-1.007 either have paid the penalty or posted a Section 316.545, Florida Statutes, bond shall appear in person, through an authorized representative or by legal counsel. Each person shall be given ample time to explain the reasons for seeking relief. The Review Board, at its discretion, may inquire into any testimony presented at the meeting or written statements presented. Testimony also may be received from the agency that imposed the penalty. Although Mr. Walker testified that he never received notice of rule- making to amend Chapter 14A-1, Florida Administrative Code, he did not present evidence that he requested notice. Nor did he argue that the amendments were otherwise invalid. Chapter 18, Motor Carrier Compliance Operations Manual As stated in its first paragraph, Chapter 18, "Collection of Civil Penalties", within the Motor Carrier Compliance Operations Manual, the purpose of Chapter 18 is, to establish a uniform procedure for the collection of overweight penalties and other commercial vehicle penalties assessed pursuant to Florida Statutes and, Department Rules. (DOT Exhibit Number13) Like the rules of DOT in 1995, the Chapter 18 procedures provided for immediate collection of a penalty, or posting a bond or impoundment of a vehicle at the time enforcement action is taken. Although agency personnel invoked Chapter 18 as part of their basis for seeking immediate payment by H. B. Walker, the provisions of the Chapter nowhere specifically mention penalties assessed as the result of terminal audits. On April 15, 1996, the agency issued Enforcement Bulletin 18-001, to be inserted in Chapter 18 describing procedures for imposition and collection of civil penalties associated with terminal audits. Those procedures are the same as the procedures described in the rule amendments addressed in paragraphs 18 through 20, above.
The Issue The issue in this case is whether Respondent's certificate of registration (Certificate) should be revoked for alleged failures to comply with requirements of chapter 212, Florida Statutes.
Findings Of Fact The Department is the state agency charged with administering and enforcing Florida's revenue laws, including the laws related to the imposition and collection of sales and use taxes pursuant to chapter 212. Colorcars is a Florida corporation engaged in the retail auto sales business in Nokomis, Florida. Colorcars is a "dealer" within the meaning of section 212.02(6). In order to engage in business as a "dealer," Colorcars was first required to apply for and obtain a Certificate from the Department. Colorcars first obtained its Certificate in 1994. As a "dealer" holding a Certificate, Colorcars is obligated to comply with the sales tax laws, including collecting sales tax from its auto customers, filing returns, and remitting the collected sales tax to the Department. In a prior DOAH proceeding, Colorcars initially requested an administrative hearing to contest a Notice of Proposed Assessment (NOPA) issued in 2005, by which the Department asserted that Colorcars' sales tax payments were deficient in the amount of $185,376.54, based on the results of an audit of Respondent's business for the period from August 1, 2001, through July 31, 2004. With additional penalties and interest claimed by the Department, the total proposed assessment as of June 14, 2005, according to the NOPA, was $245,057.07. Respondent pursued the protest avenues within the Department, but was unsuccessful, and the NOPA was confirmed in the Department's notice of reconsideration dated August 19, 2008. Colorcars was given notice of its rights, and Mr. Early filed a Petition for a Chapter 120 Hearing on Colorcars' behalf. The case was forwarded to DOAH and assigned DOAH Case No. 08-5442. DOAH Case No. 08-5442 was closed without an evidentiary hearing. The parties filed an Agreed Dismissal With Prejudice on February 13, 2009 (2009 Agreed Dismissal), whereby Colorcars dismissed its petition with prejudice, thereby withdrawing its request for an administrative hearing to contest the NOPA. Mr. Early signed the 2009 Agreed Dismissal as Colorcars' qualified representative in that DOAH proceeding,3/ on February 13, 2009. The 2009 Agreed Dismissal included the following provisions: Colorcars filed this proceeding to contest the sales tax assessment (the "Assessment") arising from audit number 200005030 for the period August 1, 2001 through July 31, 2004, which was final upon issuance of the Department's August 19, 2008 notice of reconsideration. This proceeding to contest the Assessment is hereby dismissed with prejudice. The Assessment remains final, valid, and effective in its entirety. The sales tax assessment initially contested by Colorcars in DOAH Case No. 08-5442 will be referred to hereafter as the Final 2008 Assessment. On February 19, 2009, the Department issued a tax warrant in the amount of $319,512.05 to secure the unpaid Final 2008 Assessment. The tax warrant amount reflected the unpaid tax liability, plus penalties, filing fee, and additional interest that had accrued as of that date. The tax warrant was recorded in the official records of Sarasota County on February 20, 2009. No evidence was presented to demonstrate that the tax warrant recorded in Sarasota County was ever withdrawn, amended, invalidated, or satisfied. No evidence was presented to demonstrate that the validity of the tax warrant was ever challenged in any tribunal (except to the extent that Colorcars seeks to question its validity in this proceeding). On February 16, 2010, the Department filed a judgment lien against Colorcars with the Florida Secretary of State to secure the same unpaid Final 2008 Assessment, based on the tax warrant recorded in Sarasota County on February 20, 2009. According to the judgment lien certificate in evidence, as of February 16, 2010, Colorcars' tax liability had mounted to $365,395.84, which was the amount of the filed judgment lien. No evidence was presented to demonstrate that the judgment lien recorded with the Secretary of State was ever withdrawn, amended, invalidated, or satisfied. No evidence was presented to demonstrate that the validity of the judgment lien was ever challenged in any tribunal. Mr. Early admitted that as of September 20, 2012, Colorcars has not made any voluntary payments to reduce the sales tax liability established by the Final 2008 Assessment. In April 2009, the Department froze funds in a Colorcars bank account at Liberty Savings Bank. Over a two-year period, Colorcars fought the Department's effort to levy the funds in the Liberty Savings Bank account. Following litigation, the validity of the Department's action was ultimately confirmed, and the Department was allowed to levy approximately $64,000.004/ to apply to Colorcars' tax liabilities. However, according to the Department's witness, the funds levied were applied to offset other Colorcars tax liabilities, and thus, were not applied to reduce Colorcars' tax liability stemming from the Final 2008 Assessment. Colorcars took issue with this testimony, claiming that the levied bank funds should have been applied to reduce the Final 2008 Assessment. Neither party presented evidence sufficient to resolve this dispute, but it is unnecessary to decide whether the Department has properly applied and accounted for the levied funds for purposes of this proceeding, because the exact amount of Colorcars' remaining tax debt need not be determined. The primary basis for seeking revocation of Colorcars' Certificate is Colorcars' failure to comply with the requirements of chapter 212 by failing to pay the mounting tax liability that Colorcars admitted it owed in February 2009, when it voluntarily dismissed with prejudice its challenge to the Final 2008 Assessment. Colorcars conceded that it has not voluntarily undertaken to pay one dime of the substantial sales tax deficiency attributable to a three-year period of business operations that began more than a decade ago. Colorcars presented no explanation for its failure to pay this admitted liability, which grows daily with accruing interest; Colorcars only asserted that possibly the Department succeeded in wresting away Colorcars' funds to force a partial payment, which Colorcars fought. Even if the evidence established that the levied bank funds should be applied to reduce the total amounts due from the Final 2008 Assessment, Colorcars would still owe more than $300,000.00 from the Final 2008 Assessment, which would have to be paid for Colorcars to come into compliance with its obligations under chapter 212. As a related, but independent basis for seeking revocation, the Complaint alleged that the Department has issued one or more tax warrants and/or judgment lien certificates, filed in the public records, for collection of Colorcars' sales tax liability resulting from the Final 2008 Assessment. The Department presented proof that both a tax warrant and a judgment lien were issued against Colorcars and duly recorded in the public records. Colorcars acknowledged that a tax warrant was filed, but argued that the tax warrant should be deemed void or invalid because it was issued less than 30 days after the 2009 Agreed Dismissal, which was before the time to appeal had expired. Colorcars did not dispute the Department's evidence of a duly-recorded judgment lien. Colorcars did not present any evidence or argument questioning the validity of the judgment lien, which was not recorded until February 16, 2010. The Complaint also charged Colorcars with failing to pay sales tax when due after collecting the sales tax from customers, despite filing sales tax returns for December 2011 and January 2012 that established Colorcars' sales tax liability. The total amount of sales tax collected by Colorcars from its customers and not paid over to the Department in those two months was $1,401.16. The Complaint alleged that as of March 5, 2012, an additional $145.93 in penalties and interest was owed in connection with this sales tax liability. Colorcars admitted that it collected sales tax from customers that it has not paid over to the Department for those two months. Colorcars did not dispute the amount of collected sales tax it failed to pay, or the amount of penalties and interest, as alleged in the Complaint. Colorcars claimed that its failure to pay sales tax collected from its customers should be excused because the Department made it impossible for Colorcars to pay. According to Colorcars, the bank account that was frozen by the Department was the one set up to make electronic sales tax payments to the Department. Thus, while Colorcars was required to, and did, timely file its sales tax returns for December 2011 and January 2012, Colorcars contends that it was unable to make the tax payments admittedly due because it could not do so electronically. Contrary to Colorcars' claim, the evidence established that Colorcars could have made arrangements to pay the sales tax liability some other way besides an electronic payment from the frozen account that had been set up to make electronic payments. The Department's witness testified credibly and without contradiction that Colorcars could have sent payment the old-fashioned way, by mail or delivery to the Department. Colorcars could have made the payments by check from another account, or by tendering cash, cashiers' check, or money order, and such payment would have been accepted by the Department. Mr. Early admitted that the sales taxes collected from customers that should have been paid to the Department were being held "at the office of corporations attorney." Mr. Early admitted that Colorcars never tried to make these tax payments some way other than electronically from the frozen account, such as by offering to write a check to the Department or to pay in cash. Mr. Early admitted that as of the date of the hearing, the sales tax collected from customers that should have been paid over to the Department at the time the December 2011 and January 2012 tax returns were filed, remains unpaid. Mr. Early gave no legitimate explanation for holding these funds, instead of paying them over to the Department.5/ As a final item, the Complaint charges Colorcars with failing to pay a penalty and a fee, totaling $275.00, assessed because Colorcars allegedly filed its 2009 corporate income tax return late. Colorcars contends that it believes the return was timely filed, but was just received late by the Department. The Department failed to present evidence clearly substantiating its allegation of a late-filed 2009 corporate income tax return.6/ Colorcars offered no evidence to prove that it timely filed its 2009 corporate income tax return. On November 18, 2011, the Department initiated the process for revocation of Colorcars' Certificate by issuing a notice of revocation conference, requesting Colorcars to appear at an informal conference. The notice informed Colorcars that revocation was being considered because of Colorcars' failure to comply with chapter 212, resulting in a total sales tax liability claimed by the Department of $432,474.52. Colorcars was informed that, at the informal conference, Colorcars would have the opportunity to make payment or present evidence to demonstrate why the Department should not revoke Colorcars' Certificate. The notice advised that the informal conference would be held on January 18, 2012. A handwritten note on the copy of the notice in evidence indicates that it was received on December 14, 2011. Four weeks after the apparent receipt of the notice, on January 11, 2012, Mr. Early wrote a letter, sent by overnight courier to the Department, requesting that the informal conference be rescheduled because Mr. Early was out of the country. Mr. Early identified two ten-day periods, one in February and one in March, when he would be in Florida and could attend an informal conference; Mr. Early expressed a preference for the latter month, and in particular, for March 7, 2012. Mr. Early indicated that he intended to be represented by counsel at the meeting and was interviewing candidates. The Department agreed to reschedule the informal conference and accommodated Mr. Early by resetting the conference for the date that Mr. Early said he preferred. The Department's January 30, 2012, letter rescheduling the conference warned that "there will be no more change" to the rescheduled revocation conference. Mr. Early attended the March 7, 2012, revocation conference, without counsel. At the final hearing, Mr. Early indicated that despite the warning that there would be no more changes to the rescheduled conference date that Mr. Early had requested, Mr. Early, nonetheless, asked the Department to delay the conference again because he had retained counsel who was not available on March 7, 2012. The Department apparently adhered to its warning and did not agree to another delay of the conference. At the informal conference, the Department and Colorcars apparently came close to reaching a compliance agreement, a draft of which is in evidence. According to Mr. Early, he refused to sign the draft agreement offered by the Department because he would not agree to personally guarantee the payment schedule agreed to by Colorcars to retire its sales tax liability. Mr. Early suggested that this was a surprise clause added at the last minute. In contrast, the Department's witness testified that it is a standard provision. Mr. Early seemed to suggest that if the Department doubted whether Colorcars could meet the schedule of payments to satisfy its sales tax liability, then the Department should have compromised the debt and agreed to accept less from Colorcars. Collectability is one factor considered by the Department in determining whether to exercise its discretion to compromise a sales tax liability, but it is only one factor. It is unclear whether Mr. Early presented evidence at the informal conference regarding Colorcars' financial status or regarding other factors bearing on the Department's consideration of a possible compromise. It is also unclear whether Mr. Early presented evidence related to Colorcars' sales tax liabilities claimed by the Department in the notice of revocation conference. Other than the draft compliance agreement itself, which is in evidence as the proposed agreement that the Department offered but Mr. Early refused to sign, no credible evidence was presented to establish what was said or what evidence was presented at the informal conference. However, following the informal conference, the total tax liability claimed by the Department was reduced from the $432,474.52 claimed in the November 18, 2011, revocation conference notice to $375,473.15, the total amount for which repayment was sought in the draft compliance agreement and the total amount set forth in the Complaint. The Complaint was filed after Mr. Early's rejection of the draft compliance agreement offered by the Department. Claimed Deprivation of Right to Counsel/Qualified Representative In its PRO, Respondent asserted as a "procedural issue" that it was deprived of its right to be represented by counsel or qualified representative at the final hearing. Thus, additional Findings of Fact are made to specifically address this claim. The Complaint was mailed to Respondent on April 25, 2012. In addition to setting forth the charges, the Complaint informed Respondent of its right to an administrative hearing and its right to be represented by counsel or other qualified representative. Respondent was given 21 days in which to request an administrative hearing, and Respondent was informed that if a hearing was requested, Respondent would be given at least 14 days' notice before the hearing would be held. Thus, Respondent was on notice that it needed to act quickly to exercise its right to be represented by counsel or qualified representative, because the final hearing could be held in very short order. Respondent's timely-filed Petition set forth Respondent's choice of representative as follows: "John T. Early, III, esq. . . . shall be the representative of the Petitioner [sic: Respondent]." Mr. Early clarified at the hearing that he uses the title, "esq.," because he is a lawyer in the state of Connecticut, but he is not admitted to practice in the state of Florida. The Initial Order entered by DOAH on June 1, 2012, referred the parties to the governing procedural statutes and rules and contained a summary of procedures. The summary provided a second notification to Colorcars that it may appear personally or be represented by counsel or other qualified representative. The summary also gave explicit notice that under the governing rules, any requests for continuance of the final hearing must demonstrate good cause and must be filed at least five days before the hearing date, absent extreme emergency. On June 7, 2012, the parties filed a joint response indicating that they were available for a final hearing in early August 2012. On August 2, 2012, a Notice of Hearing was issued, scheduling the final hearing for September 20, 2012. A separate Order of Pre-Hearing Instructions established various deadlines for the orderly and timely preparation for the final hearing. These deadlines included the following: by September 5, 2012, the parties were required to meet to discuss settlement possibilities, exchange witness lists disclosing all potential witnesses and designating experts as such, exchange all proposed exhibits, and prepare a joint pre-hearing stipulation; by September 10, 2012, the parties were required to file their joint pre-hearing stipulation; and alternatively, if no joint pre-hearing stipulation could be reached, then by September 13, 2012, the parties were required to file separate unilateral pre-hearing statements. From May 30, 2012, when this case first arrived at DOAH, through the close of the entire pre-hearing preparation phase, during which settlement was to be explored, witness and exhibit choices were to be made and disclosed, and pre-hearing stipulations or pre-hearing statements were to be finalized and filed, Mr. Early remained as Respondent's sole designated representative pursuant to its Petition. On September 18, 2012, two days before the final hearing, Robert Resnick filed a Notice of Appearance on behalf of Respondent, along with a motion for continuance. The motion contended that Mr. Resnick had "just been retained" and needed additional time to prepare for hearing and to pursue settlement with the Department. The motion was denied, because it failed to demonstrate an emergency as required by rule 28-106.210. On September 19, 2012, less than 24 hours before the hearing was supposed to begin, Mr. Resnick filed an amended motion for continuance, disclosing for the first time that he was scheduled to be in court in a criminal matter in Broward County on September 20, 2012, and, thus, was unavailable for the final hearing for which he had just been retained to represent Respondent. As detailed in the Second Order Denying Continuance, the amended motion was found insufficient to demonstrate an emergency. In particular, it was noted that Respondent's failure to retain counsel until the last minute and Respondent's failure to ensure that the counsel retained at the last minute was actually available for the scheduled final hearing, did not constitute emergencies. At the outset of the final hearing, Mr. Early renewed the request for a continuance, but offered nothing by way of additional reasons or explanation that would justify the last-minute nature of his request, why Respondent did not attempt to secure counsel sooner and why Respondent selected a lawyer at the last minute who was not available to appear at the final hearing. Instead, Mr. Early made light of the delay, at one point characterizing himself as "president of the procrastinators' club." Mr. Early displayed a lack of candor in his effort to delay the hearing by representing that counsel for the Department and Mr. Resnick "had reached an agreement to continue between themselves[.]" Counsel for the Department denied any such agreement, stating that the Department's position was only that it did not oppose Respondent's request for continuance, which was not the same thing as agreeing to a joint motion to continue. Mr. Early then admitted that he had only sent an email to counsel for the Department requesting an agreement, but that counsel for the Department apparently "didn't receive my e-mail last night where I had to ask him that. . . . I don't mean to jump the gun on it." The undersigned finds that Colorcars had full rein to exercise its right to be represented or advised by counsel or qualified representative throughout this administrative process. Colorcars exercised its right by designating Mr. Early as its representative in the Petition. Mr. Early had previously represented Colorcars in a DOAH proceeding in which he requested and attained "qualified representative" status. Mr. Early was capable of serving as Respondent's representative in this proceeding. Even so, Colorcars has retained the right to be advised by counsel throughout these proceedings, and Colorcars was allowed to have its counsel of record prepare and file Colorcars' PRO, despite not having appeared at the final hearing. The undersigned finds that Colorcars waived its right to change the choice of representative it made in its Petition, so as to be represented by late-appearing counsel at the final hearing, by not attempting to exercise that right in a timely and appropriate manner consistent with the governing procedural rules. Colorcars was on notice of its representation rights for months, just as it was on notice of the limitations on continuances. Colorcars offered no reason why it could not have timely retained an attorney who could be available on the scheduled hearing day. The totality of the circumstances, including the timing of Colorcars' actions, suggests an inappropriate strategic purpose of securing delay. That is particularly true since Colorcars selected an attorney at the last minute who was not available on the scheduled hearing date. Colorcars has demonstrated a pattern of picking different counsel at the last minute in order to attempt to trigger a delay, because the counsel selected has a schedule conflict. Colorcars retained a different lawyer before the March 7, 2012, informal revocation conference, and then asked to delay that hearing because the lawyer was not available that day. In telling fashion, Mr. Early complained that the Department would not agree to a second postponement of the informal revocation conference when "we had requested--in a similar situation requested an extension of time because counsel couldn't be there that day. Not Mr. Resnick, but a different counsel."7/ Whether by strategy or by the strangest of coincidences, Colorcars' penchant for last-minute attempts to change its representatives to attorneys with schedule conflicts cannot be countenanced as a way to evade procedural deadlines and requirements imposed on all parties in the interest of the orderly administration of justice in administrative proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue revoke the Certificate of Registration held by Respondent, Colorcars Experienced Automobiles, Inc., now known as Experienced Vehicles, Inc. DONE AND ENTERED this 13th day of December, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 13th day of December, 2012.
The Issue The issue in this case is whether Respondents committed the offenses described in an Administrative Complaint entered by Petitioner on or about January 10, 1997.
Findings Of Fact Petitioner, The Department of Agriculture and Consumer Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for enforcing the Florida Motor Vehicle Repair Act, Sections 559.901-559.9221, Florida Statutes (hereinafter referred to as the "Act"). Respondent, Adam's Street Muffler Shop and Service Center, Inc. (hereinafter referred to as "Adam's Street Muffler"), is a dissolved Florida corporation. Adam's Street Muffler is located at 1401 South Adam's Street, Tallahassee, Leon County, Florida. Adam's Street Muffler is registered with the Department under the Act as a motor vehicle repair shop. The Department has assigned registration number MV-15484 to Adam's Street Muffler. Respondent, Tim Tanner, is the owner and operator of Adam's Street Muffler. At the time that Adam's Street Muffler register pursuant to the Act, a registration packet, including a copy of the Act, was provided to Adam's Street Muffler. On July 24, 1995, Robert Dan Drake, an investigator with the Department's Bureau of Motor Vehicle Repair, went to Adam's Street Muffler. Mr. Drake performed a compliance audit to determine whether repair estimate statements and invoices for services were in compliance with Sections 559.905 and 559.911, Florida Statutes. A copy of the repair invoice provided by Adam's Street Muffler personnel to Mr. Drake was determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes. See Petitioner's Exhibit 9. Mr. Drake discussed the requirements of the Act pertaining to repair estimates and invoices with Peggy Folsom, the secretary for Adam's Street Muffler. Mr. Drake also provided an On-Site Inspection Report/Citation (Petitioner's Exhibit 7), and a Compliance Checklist/Citation (Petitioner's Exhibit 8), to Ms. Folsom. These forms described the deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler. Adam's Street Muffler was given thirty days to correct the repair estimate and invoice. A revised form was submitted to the Department. See Petitioner's Exhibit 10. The corrected form was accepted by the Department. On July 1, 1996, Mr. Drake returned to Adam's Street Muffler. Mr. Drake discovered that the repair estimate and invoice used by Adam's Street Muffler for a complaining customer was the same form that he had found to be deficient on July 24, 1995. See Petitioner's Exhibit 12. Mr. Drake issued a second On-Site Inspection Report/Citation to Adam's Street Muffler as a result of the July 1, 1996 visit. Petitioner's Exhibit 11. The report again described the specific deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler. On October 1, 1996, Mr. Tanner paid a $300.00 fine for violating Sections 559.905 and 559.911, Florida Statutes. On December 1, 1996, two months after Mr. Tanner paid the fine, and approximately six months after the second violation of the Act, Dan Keller, an employee of the Department, visited Adam's Street Muffler. Mr. Keller examined forms titled "Repair Orders" in the files of Adam's Street Muffler. The forms discovered by Mr. Keller were determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes. Petitioner's Exhibits 1-5. The forms copied by Mr. Keller on December 1, 1996, were used as repair estimates and invoices for services performed. The evidence failed to prove when the vehicles at issue were brought to Adam's Street Muffler, that they were not brought to Adam's Street Muffler by person other than the owner, or that Adam's Street Muffler did not notify the customer pursuant to Section 559.909(1), Florida Statutes. None of the owners of the vehicles to which Petitioner's Exhibits 1-5 relate have filed a complaint with the Department concerning work performed by Adam's Street Muffler. The repairs evidence by Petitioner's Exhibits 1-5 were for repair work costing in excess of $50.00. The forms taken from Adam's Street Muffler on July 24, 1995, July 1, 1996, and December 1, 1996 are incorporated into this Recommended Order by reference. On or about January 10, 1997, the Department entered an Administrative Complaint against Adam's Street Muffler and Mr. Tanner. The Administrative Complaint contains two counts against Respondents: one for alleged violations of Section 559.905, Florida Statutes, and one for alleged violations of Section 559.911, Florida Statutes. Both counts relate the forms obtained by the Department in December of 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Agriculture and Consumer Services finding that Adam's Street Muffler Shop and Service Center, Inc., a Florida Corporation, and Tim Tanner, individually and as Director of Adam's Street Muffler Shop and Service Center, Inc., violated Section 559.911, Florida Statutes, as alleged in the Administrative Complaint entered January 10, 1997. IT IF FUTHER RECOMMENDED that Respondents be required to pay an administrative fine of $1,000.00 within thirty days of the date that the Final Order becomes final and the motor vehicle repair shop registration, MV-15484, issued to Respondents be suspended for a period of two weeks. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 27th day of June, 1997. COPIES FURNISHED: Lawrence J. Davis, Senior Attorney Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 J. Joseph Hughes, Esquire 1017-A Thomasville Road Tallahassee, Florida 32303-6221 Honorable Bob Crawford Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Department of Agriculture and Consumer Services Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The Department is the state agency which has the authority to enforce the statutory weight limit restrictions for vehicles traveling on the highways in the state and to impose penalties for violations of the restrictions. Sections 316.640, .535, and .545, Florida Statutes. On January 30, 1996, Officer Daniel Starling of the Department's Motor Carrier Compliance office, observed Reinaldo Gutierrez operating a commercial motor vehicle on State Road 80 in Palm Beach County, Florida. The vehicle appeared to Officer Starling to be overweight, and he stopped the vehicle and weighed it on the portable scales issued to him by the Department. These scales are inspected and certified as accurate twice a year by the Florida Department of Agriculture. Officer Starling weighed the vehicle in accordance with the training he had received from the Department. He determined that the vehicle's total weight was 81,500 pounds. Mr. Gutierrez's vehicle was a tractor/trailer combination carrying a load of sand; its length was 40 feet between its first and last axles. The maximum weight allowable by statute for this vehicle is 73,271 pounds. Officer Starling calculated that Mr. Gutierrez's vehicle weighed 8,226 pounds more than the 73,271-pound statutory limit, and he issued Load Report Citation number 119441L, assessing a penalty of $.05 cents per pound of excess weight. The resulting penalty, as calculated by Officer Starling, was $411.45, and Mr. Gutierrez paid this penalty in cash on January 30, 1996. Mr. Gutierrez does not dispute that his vehicle was overweight on January 30, 1996, but he contends that his vehicle was only 3,009 pounds overweight. He bases this contention on the load ticket he received on January 30, 1996, when he left the premises of GKK Corporation, the company for which he was hauling on that day. Although this load ticket showed a total weight of 76,280 pounds, Mr. Gutierrez did not produce evidence that the weight stated on the ticket was reliable. Furthermore, Mr. Gutierrez did not produce evidence that the scales used by Officer Starling were inaccurate or that the procedures he used in weighing the vehicle were improper. The evidence is clear and convincing that, on January 30, 1996, Mr. Gutierrez was operating a commercial vehicle on Florida's public highways whose weight exceeded the statutory weight limit of 73,271 pounds by 8,226 pounds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that Reinaldo Gutierrez violated section 316.545(3), Florida Statutes, in the amount of 8,229 pounds and that Reinaldo Gutierrez is not entitled to a refund of the $411.45 penalty assessed against him. DONE AND ENTERED this 31st day of October, 1996, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1996. COPIES FURNISHED: Murray M. Wadsworth, Jr. Assistant General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Reinaldo Gutierrez 1360 South Main Street Belle Glade, Florida 33430 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
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.
Findings Of Fact In 1991, Petitioner owned a new 1991 Ford conversion van which he felt was a lemon as that term is defined in the Florida Lemon Law. In pursuit of his legal rights under the Lemon Law, Petitioner made a request for arbitration of his automotive problem. Petitioner first applied for arbitration pursuant to the Lemon Law on December 31, 1991. Petitioner's application was incomplete because it failed to show that Petitioner had properly addressed and mailed Ford Motor Company a Motor Vehicle Defect Notification. The Department returned the arbitration request to Petitioner on January 14, 1992. The accompanying letter informed Petitioner that he was required to submit, by certified mail, a Motor Vehicle Defect Notification form to the "Ford Motor Company, Attention: Customer Relations, Post Office Box 945500, Maitland, Florida 32794 Petitioner was instructed to supply the Department with evidence of his compliance with the Notice requirement providing a proper receipt along with his application within 30 days of Petitioner's receipt of the January 14, 1992, letter. Petitioner failed to respond or return his application within the 30 days. No evidence was ever submitted to the Division to show that Mr. Thomas mailed the Motor Vehicle Defect Notification Form to the Ford Motor Company as instructed by the January 14, 1992, letter from Respondent and as required by statute. Similarly, no evidence was presented at the hearing that the form was ever mailed to the appropriate entity. After 30 days had lapsed from the January 14, 1992 letter, the Department could have "rejected" Petitioner's request for arbitration by sending him a notice of rejection as required by Rule 2-32.009(c)(2), Florida Administrative Code. However, the Division did not send a rejection notice to Petitioner at that time. Instead, Petitioner's file was closed on March 13, 1992, with no further action taken. Therefore, the time period for amending Petitioner's first application did not expire and remained open at least through January, 1993. At the hearing, Petitioner claimed that he did not respond to the Division's request for more information because he was mentally disabled and was hospitalized for 45 days between December 1991, and October 1992, and that the American's with Disabilities Act requires that an exception to compliance with the Rules and Statutes be given to him. However, the evidence did not demonstrate that Petitioner was disabled during the entire period of time after the Division's request for information. Additionally, Petitioner did not request an extension of his response time as is required by the Florida Administrative Code. Moreover, since neither the rules nor the statutes provide for such an ADA exception, the Division cannot unilaterally fashion such an exception without engaging in rulemaking under Chapter 120. Such an exception must be addressed by the Florida Legislature or in rulemaking. Therefore, Petitioner is not entitled to any exception to the Lemon Law requirements because of his disability or hospitalizations. Ten months later, On October 5, 1992, Petitioner again applied for Lemon Law arbitration. Petitioner's application was again incomplete and the Department requested more information. However, because the Division did not send Petitioner a formal rejection letter, the October 5, 1992, application related back to the first application filed December 31, 1991. Petitioner supplemented the second application with information showing that his vehicle had reached 24,000 miles in September of 1991. On November 13, 1992, Respondent notified Petitioner that his request for arbitration was untimely because his request did not fall within the statutory period allowed once his vehicle reached 24,000 miles. A rejection notice was contained in the Department's letter of November 13, 1992, thereby beginning the 30 day time period for any amendments to either of Petitioner's applications. As indicated earlier, the 30 day time period expired without Petitioner submitting any evidence that he had mailed Ford Motor Co. a Vehicle Defect Notification form. Therefore, Petitioner's application remained incomplete at the time any request for arbitration could have been made expired. Petitioner is therefore not entitled to arbitration under the Florida Lemon Law. Finally, after Petitioner had requested arbitration, Petitioner sold and replaced the conversion van prior to the hearing. Therefore, Petitioner can not present the van to Ford Motor Co. for one last opportunity to repair. Such presentation is a condition precedent to arbitration which Petitioner cannot meet. Additionally, by selling his vehicle, Mr. Thomas has abandoned his Lemon Law Claim, in that he no longer has an ongoing dispute with Ford Motor Company that requires arbitration and his request for such is moot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Florida Department of Agriculture and Consumer Services denying Mr. Andrew Thomas' request for Lemon Law arbitration. DONE AND ENTERED this 22nd day of September, 1994, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER 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 September, 1994.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On May 25, 1996, Officer Joseph Borras, an employee of the Department working out of its Miami field office, stopped a commercial vehicle operated by Petitioner for failing to stop at a railroad crossing on Northwest 58th Street in Hialeah, Florida. The vehicle was carrying hazardous materials. The materials were flammable. The vehicle was placarded on all sides. Although the placards had the word "flammable" written on them and two of the placards, in addition, contained hazard class numbers, all four of the placards were substantially faded and, as a result, upon visual examination, their color did not fall within the color tolerances displayed on the Hazardous Materials Label and Placard Red Color Tolerance Chart. (Red placards are used, in accordance with federal regulations, to indicate that a commercial vehicle is carrying flammable materials.) Officer Borras conducted an inspection of the vehicle. His inspection revealed that the vehicle's placards were substantially faded. Following his inspection, Officer Borras issued Safety Report and Field Receipt 066486, on which he noted that, in violation of 49 C.F.R. Section 177.823, the "placards on [the] vehicle [were] all faded and 2 [were] missing hazard class [numbers]." Officer Borras assessed and collected from Petitioner a fine in the amount of $250.00 as a penalty for this violation. Petitioner is now seeking a refund of these monies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be issued denying Petitioner's request "that citation number 066486 be rescinded and all fines ($250.00) be returned to [it] for this citation." DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of May, 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 21st day of May, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-5995 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its proposed recommended order: 1-4. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. Rejected as a finding of fact because it is more in the nature of a statement of what occurred at hearing than a finding a fact. Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact. Rejected as a finding of fact because it is more in the nature of a summary of, or argument concerning, testimony adduced at hearing than a finding of fact. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. COPIES FURNISHED: Peter Pesola, Plant Manager Delta Laboratories, Inc. 640 West 18th Street Hialeah, Florida 33010 Murray M. Wadsworth, Jr. Assistant General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben Watts, Secretary c/o Diedre Grubbs Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Beginning in 1966, Petitioner, BREWINGTON SONS & DAUGHTERS, was engaged in a used-car business located at 8007, U.S. Highway North, in Hillsborough County, Florida. For reasons unrelated to this case, on December 19, 1994, the Florida Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, suspended Petitioner's license as an independent motor vehicle dealer in Florida. As a result of this licensure suspension, Petitioner ceased operation of a used-car business after December 19, 1994. At some time prior to January 18, 1995, Petitioner had erected a sign which read, in pertinent part, "Brewington Sons & Daughters Used Cars, Sales and Service," which sign was located at Petitioner's property on U.S. Highway 301 North, in Hillsborough County, Florida. The subject sign was visible from the main-traveled way of U.S. Highway 301 North. U.S. Highway 301 is a federal-aid primary highway. In January of 1995, prior to the issuance of a notice of violation to Petitioner, Mona Hart, a property and outdoor advertising inspector of Respondent, inspected Petitioner's property from U.S. Highway 301 and observed the subject sign. At the time of this inspection, there was no indication of a used-car business in operation at the site. In January of 1995, prior to the issuance of a notice of violation to Petitioner, Susan Rosetti, the district right-of-way administrator of property management and outdoor advertising with Respondent, contacted the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, regarding the status of Petitioner's license and was informed that Petitioner's license to operate a used-car business had been suspended on December 19, 1994. On January 18, 1995, Respondent issued a notice of violation to Petitioner under Section 479.07, Florida Statutes, and posted a violation sticker on the subject sign for failure to have a permit. On January 19, 1995, Respondent mailed a notice of violation to Petitioner. On January 18, 1995, Petitioner was not operating a used-car business on the premises where the subject sign was located. On or before February 10, 1995, Petitioner removed the subject sign from its location on U.S. Highway North in Hillsborough County, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order confirming the issuance of a notice of sign violation to Petitioner. DONE AND ENTERED this 7th day of November, 1995, in Tallahassee, Leon County, Florida. RICHARD HIXSON 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 7th day of November, 1995. APPENDIX As to Respondent's Proposed Findings 1 - 11. Accepted and incorporated. COPIES FURNISHED: Floyd B. Brewington, Sr. Brewington Sons & Daughters 8007 U.S. Highway 301 North Tampa, FL 33637 Mary J. Dorman, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Attn: Diedre Grubbs, M.S. 58 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450
