The Issue Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess penalties of $4,101 pursuant to Section 316.545, Florida Statutes, regulating operation of commercial vehicles on a highway in the State of Florida?
Findings Of Fact On April 3, 1992, Beverly Griffin inspected and weighed two commercial vehicles owned and operated by the Respondent at the Sneads, Florida weigh station. The drivers produced the vehicles' Wisconsin apportioned registration, but the IRP permits and trip tickets were expired. The vehicles were weighed. One weighed 76,000 pounds, and the other weighed 76,020 pounds. The Respondent admitted the violation; however, the Respondent's representative indicated in his plea of mitigation that the company had obtained required permits and brought its equipment into the state on the trucks; however, it had taken longer than expected to complete the work with the machinery the trucks were carrying, and the permits had expired before the trucks and equipment could leave the state. The Department levied a fined in the amount of $4,101, at 5 cents/ pound for the overweight trucks plus $80 for new trip tickets, $90 for temporary fuel use permits, and $100 penalty for not having current fuel use permits. The Respondent paid the penalties. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finalizing assessment of the $4,351 in penalties against the Respondent pursuant to Section 316.545, Florida Statutes. DONE and ENTERED this 17th day of November, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Gary Pomeroy, Vice President The Big Red Machinery Movers, Inc. Post Office Box 274 Butler, WI 53007 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issue in this case is whether American Engineering and Development Corporation committed the violations alleged in Load Report and Field Receipt Number 49975L and, if so, the amount of the penalty which should be imposed.
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 31, 1995, Officer Joseph Borras, of the Department's Motor Carrier Compliance Office, observed Jose R. Sanchez operating a commercial motor vehicle on State Road 862, which is also known as Interstate 595, in Broward County, Florida. The vehicle was a tractor/trailer combination carrying a hydraulic excavator, both of which were owned by American Engineering. The air-regulated axle of the vehicle was in the up-right position, causing Officer Borras to stop the vehicle. At Officer Borras's request, Mr. Sanchez produced the Overweight/Overdimension Permit issued to American Engineering for "construction and industrial equipment and prefab. structural item on trucktractor semitrailer;" the permit included a permissible gross weight of 132,000 pounds. This permit, known as a blanket permit, contained conditions which, if violated, would void the permit in its entirety. Permit condition number 7 required maps to be attached to the permit identifying the approved routes for the vehicle to which the permit applied. Permit condition number 8 provided that the permit was void if the required maps were not attached. 1/ There were no maps attached to the permit produced by Mr. Sanchez for the American Engineering vehicle, a violation of permit condition number 7. American Engineering's Overweight/Overdimension Permit was, therefore, void in its entirety. Officer Borras had reason to believe that the vehicle exceeded the statutory weight limit of 80,000 pounds established in section 316.535(4) and (5), Florida Statutes (1993). He escorted the vehicle to a safe area and weighed the tractor/trailer combination, together with the hydraulic excavator which it carried, using portable scales issued to him by the Department. The scales had been inspected on January 9, 1995, by technicians of the Florida Department of Agriculture and Consumer Services and were found to be accurate. Officer Borras weighed the vehicle in accordance with the training he had received from the Department and determined the vehicle's total weight to be 133,400 pounds. Based on this weight, Officer Borras determined that the vehicle weighed 53,400 pounds more than the 80,000-pound weight limit, 2/ and he issued Load Report and Field Receipt Number 49975, assessing a penalty of $.05 cents per pound of excess weight. The resulting penalty, as calculated by Officer, was $2,670.00. At the time, American Engineering did not object to the weight determined by Officer Borras, and it immediately paid the penalty assessed in order to obtain the vehicle's release from the Department's custody. American Engineering does not dispute that it violated the conditions of its special permit and that the entire permit was void, including the provision allowing the vehicle and its load to weigh up to 132,000 pounds. American Engineering disputes the Department's determination that the vehicle weighed 133,400 pounds. Benjamin Bolet, the equipment manager for American Engineering contends that it was impossible for the vehicle and its load to weigh 133,400 pounds. Based on the manufacturer's specifications of the operating weight of the hydraulic excavator and the known weight of the tractor/trailer combination, Mr. Bolet estimates that the vehicle, together with its load, should have weighed 116,560 pounds. Mr. Bolet supported American Engineering's position by introducing a Load Report and Field Receipt dated June 23, 1995, which he claimed involved the same or identical equipment and which showed a weight of 118,000 pounds. There are numerous variables which would affect the gross weight of a tractor/trailer combination and hydraulic excavator, including the type and number of tie-downs used to attach the excavator to the trailer, the amount and type of hardware attached to the excavator, the amount of gasoline in the tractor and in the excavator, and the amount of dirt on the equipment. There is no evidence that the condition of the hydraulic excavator was the same as that of the equipment used to determine the manufacturer's specifications. There is, likewise, no evidence that the condition of the tractor/trailer combination and hydraulic excavator weighed June 23 was the same as that of the equipment which is the subject of this proceeding. And, finally, there is no evidence that the scales used by Officer Borras were inaccurate or that the procedures he used in weighing the vehicle were improper. The evidence is clear and convincing that American Engineering violated the conditions of its Overweight/Overdimension Permit, that the permit was, therefore, void, and that the tractor/trailer combination and the hydraulic excavator it carried had a combined gross weight of 133,400 pounds, exceeding the statutory maximum weight of 80,000 pounds by 53,400 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 American Engineering and Development Corporation violated section 316.545(3), Florida Statutes (1993), in the amount of 53,400 pounds and that American Engineering is not entitled to a refund of the $2,670.00 penalty assessed against it. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of July 1996. PATRICIA HART MALONO 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 3rd day of July 1996
Conclusions This matter came before the Department for entry of a Final Order pursuant to an order closing the file of the Division of Administrative Hearings. The record reflects that the parties have settled their dispute and entered into a Settlement Stipulation, which Settlement Stipulation is hereby adopted by reference. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: 1. Respondent has admitted the allegations of the administrative complaint in this matter. 2. Respondent has agreed to pay and has paid a civil fine of $600.00 by certified cashier’s check, receipt of which is acknowledged by the Department. 3. Each party will bear his or its own costs and attorney fees. DONE AND ORDERED this L 4 of July, 2009, in Tallahassee, Leon County, Florida. L A. FORD, Direet6r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division otor Vehicles this 2 day of July, 2009. Copies furnished: Michael J. Alderman, Esquire Senior Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 Anthony Bliss 5325 Northwest 49 Court Coconut Creek, Florida 33073 Larry J. Sartin Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550" Dwight Davis Bureau Chief, Division of Motor Vehicles Wayne Jordan Program Manager, License Installer Program William Camper Hearing Officer Division of Motor Vehicles Billy Rankin Chief, Bureau of Field Operations Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, certified by Petitioner as a law enforcement officer. Until his retirement in January 2008, Respondent served in excess of 20 years as a sworn police officer in the Tampa Police Department (TPD). At the time of his retirement, he was a corporal. At all times material to the instant case, including January 4, 2007, in addition to working full-time as a TPD police officer, Respondent owned an automotive parts and service business (Adkins Enterprises) and the seven-acre property at 4709 East Hillsborough Avenue in Tampa (including the improvements thereon) where the business was located. Until April 2005, when its Florida Department of Highway Safety and Motor Vehicles (HSMV)-issued motor vehicle dealer's license expired, Adkins Enterprises also sold used vehicles at this location. The business had approximately 25 employees. Respondent left the day-to-day operations of the business to his managerial employees. He would stop by when he was off-duty to check on how things were going and to help out, particularly with the paperwork. At a meeting held in 2004 (2004 Meeting), TPD Captain Robert Lovering introduced Respondent to three brothers-- Roynauth "Sham" Sahdeo (Sham), Seewchand "Blacks" Sahdeo (Blacks), and Deonauth "Prim" Sahdeo (Prim)--all of whom worked at a business on 15th Street in Tampa (S & S Auto) which did automotive repairs and paint and body work, as well as provided towing services.2 Respondent understood Sham to be the "main brother," under whom the other two brothers worked. Sham, in fact, at that time, did own the business (which, unlike Adkins Enterprises, was not a Florida-licensed motor vehicle dealer). Blacks and Prim did not then have any ownership interest in S & S Auto. It was verbally agreed, at the 2004 Meeting, that Adkins Enterprises and S & S Auto would go into the auto parts and scrap metal business together, with the auto parts and scrap metal to be sold by the joint venture coming from vehicles purchased at motor vehicle auctions using Adkins Enterprises' dealer license.3 (Section 320.27, Florida Statutes, provided then, as it still does, that only licensed dealers could purchase vehicles at these auctions.) Respondent also agreed to rent out space to S & S Auto at Adkins Enterprises' 4709 East Hillsborough Avenue location (Adkins' Location). Sometime in or around 2005, Sham sold his interest in S & S Auto to his two brothers, Blacks and Prim. As far as Respondent understood, however, Sham continued to act on behalf of S & S Auto.4 Also in or around 2005, S & S Auto applied for and obtained a motor vehicle dealer license from HSMV. Because Adkins Enterprises no longer had its dealer license (it having expired in April 2005), S & S Auto's dealer license was used to purchase (at auction), not only the vehicles it sold as a licensed motor vehicle dealer, but also the vehicles from which the parts and scrap metal for the joint venture between Adkins Enterprises and S & S Auto were obtained. After they were purchased at auction, the vehicles were transported to Adkins' Location on a tow truck operated by Blacks. Space was set aside at Adkins' Location for S & S Auto to conduct motor vehicle sales operations. Insofar as Respondent knew, Dale Marler was in charge of these operations. Sham helped Mr. Marler out, but most of Sham's time at Adkins' Location (where he had a regular presence) was devoted to the auto parts/scrap metal joint venture in which Adkins Enterprises and S & S Auto were participants. (It was at Adkins' Location where the vehicles purchased for the joint venture were stripped and crushed, and the salvaged auto parts were sold.) When he had the time, as a favor, Respondent would take tag and title paperwork to the HSMV local office for Mr. Marler and/or Sham. As of January 4, 2007, Sham and Mr. Marler were still working out of Adkins' Location and engaging in the business activities described above. On that day, Respondent agreed, at Sham's request, to go to the local HSMV office and purchase temporary tags for S & S Auto's motor vehicle sales operations at Adkins' Location. In addition to the money to make the purchase, Sham provided Respondent with S & S Auto's HSMV- assigned Personal Identification Number (PIN), which Respondent had to give to the HSMV clerk in order to initiate the transaction. Respondent went to the local HSMV office, as Sham had requested, later that same day (January 4, 2007). He told the clerk that he was there to purchase 25 temporary tags for S & S Auto, and he gave her S & S Auto's PIN. The clerk inputted the information Respondent had provided her into the HSMV computer system and produced a completed HSMV Form 83090, which represented S & S Auto's application for 25 temporary tags (S & S Auto's Application). The clerk printed out copies of S & S Auto's Application, and Respondent signed the "agency copy" on the "Authorized Representative for Dealership" signature line. At the clerk's request, he showed her his driver's license, and she wrote down his driver's license number next to his signature on the application. Respondent left the office with 25 temporary tags (numbered Q415821 through Q415845), for which he paid $53.00. Respondent did not knowingly provide any false or misleading information in obtaining these tags. He honestly believed that he was acting as the "Authorized Representative" of S & S Auto in this transaction, as he represented by placing his signature on the "agency copy" of S & S Auto's Application. When he returned to Adkins' Location, Respondent put the 25 temporary tags that had been purchased at the local HSMV office in a file for Mr. Marler and Sham to use. He had nothing further to do with the tags.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of May, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2011.
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
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.
The Issue The issue is whether Petitioner is entitled to a partial refund pursuant to Subsection 212.08(9)(b), Florida Statutes (2005), for sales tax paid on vehicles and parts thereof during the period March 20, 2004, through August 20, 2006.
Findings Of Fact The Department is the state agency responsible for administration of the Florida sales and use tax pursuant to Sections 20.21 and 213.05, Florida Statutes (2008).2 Saddle Creek is a Florida corporation with its principal place of business located at 3010 Saddle Creek Road, Lakeland, Florida. Saddle Creek is a motor carrier within the meaning of 49 U.S.C. Section 13102(14). Pursuant to that provision, the term "motor carrier" means "a person providing motor vehicle transportation for compensation." Effective November 21, 2003, Saddle Creek obtained its Contract Carrier Permit from the Federal Motor Carrier Safety Administration ("FMCSA"). The Contract Carrier Permit authorized Saddle Creek to engage in transportation as a "contract carrier" of property (except household goods) by motor vehicle in interstate or foreign commerce. Since November 21, 2003, Saddle Creek has engaged in interstate commerce and has held itself out to the general public as offering transportation and warehousing services for a fee. The fact that a company holds itself out to the general public by offering transportation services for a fee does not mean that it operates as a common carrier. Since November 21, 2003, Saddle Creek has possessed cargo liability insurance and has made said insurance available to all of its shippers. As a contract carrier, the fee, terms, conditions of carriage, and the scope of liability can be specifically defined, limited, and restricted by the contract between the shipper and carrier. See 49 U.S.C. § 14101 (b). Between December 1, 2003, and October 31, 2006, Saddle Creek purchased trucks, trailers and parts for use on said vehicles in Florida and paid sales tax on all purchases. However, the parties stipulated that the time period at issue is March 20, 2004, through August 20, 2006. Effective March 9, 2007, Saddle Creek obtained its Common Carrier Certificate from the FMCSA. The Common Carrier Certificate authorized Saddle Creek to engage in transportation as a "common carrier" of property (except household goods) by motor vehicle in interstate or foreign commerce. On March 12, 2007, Saddle Creek applied to the Department for a refund of $175,023.99 for sales tax paid on trucks, trailers and parts thereof, during the period of March 20, 2004, through August 20, 2006. Saddle Creek claimed a refund based on the partial exemption from sales tax provided to interstate carriers in Subsection 212.08(9), Florida Statutes (2005). The Department denied Saddle Creek's Application for Refund, because Saddle Creek was not licensed/registered or classified by FMCSA as a common carrier during the time period for which it was requesting a refund. In reaching this decision, the Department relied on Florida Administrative Code Rule 12A-1.064,3 which implements and interprets Subsection 212.08(9)(b), Florida Statutes (2005). The Department's interpretation of the above- referenced rule is that entitlement to the partial exemption authorized in Subsection 212.08(9)(b), Florida Statutes (2005), requires that the motor carrier engaged in interstate commerce as a common carrier be licensed as a common carrier by the U.S. Department of Transportation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Revenue, enter a final order upholding it denial of Petitioner, Saddle Creek Transportation, Inc.'s, application for a partial refund of sales taxes. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2009.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Daniel M. Kilbride , an Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's Motion to Relinquish Jurisdiction based on a Settlement Stipulation entered into between the parties, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly it is FOUND and ORDERED as follows: That Respondent shall pay an administrative fine in the amount of two hundred fifty dollars ($250.00) per count for a total of four thousand two hundred fifty dollars ($4,250.00). The fine shall be paid in four monthly payments. The first payment of $1,250.00 to be paid on or before April 16, 2010. The second payment of $1,000.00 to be paid on or before May 16, 2010. The third payment of $1,000.00 to be paid on or before June 16, 2010. The fourth Filed March 18, 2010 4:17 PM Division of Administrative Hearings. and final payment of $1,000.00 to be paid on or before July 16, 2010. All payments are to be made by returning a copy of the order with payment to: Department of Highway Safety and Motor Vehicles Office of the Hearing Officer Division of Motor Vehicles 2900 Apalachee Parkway, Room A308, MS-61 Tallahassee, Florida 32399-0600 If Respondent pays each installment of the amount specified in paragraph one above within the specified time the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay any installment as specified in paragraph one, on the day following the due date of the installment, Respondent's motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. If, after suspension Respondent pays the past due installment before the due date of the next installment, its motor vehicle dealer license will immediately be reinstated without further penalties or sanctions. However, if Respondent fails to pay the past due installment by the due date of the next installment, the Department will revoke Respondent's motor vehicle dealer license. If the Department suspends or revokes Respondent's motor vehicle dealer license for non-payment as specified in paragraphs two and three said suspension or revocation shall be without recourse to the Respondent and Respondent hereby expressly waives any right to appeal or otherwise contest the suspension and revocation./ / DONE AND ORDERED this / gday of March 2010, at Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B439, MS-60 Tallahassee, Florida 32399-0600 Filed in the official records of the Division of Motor Vehicles this ay of March 2010. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rule 9.110, Rules of Appellate Procedure. CAF:jdc Copies furnished: Gary Konopka Regional Administrator Dealer License Section Riad I. Kantar, President World Shell, Inc. 7161 Augusto Boulevard Seminole, Florida 33777 FALR Post Office Box 385 Gainesville, Florida 32602
Findings Of Fact Petitioner is a dealer in liquefied petroleum gas (LPG), duly licensed in Florida. Petitioner buys LPG in Florida and resells it to dealers who in turn sell most of it at retail, but use part of it as fuel for their trucks. During the period July 1, 1975, through February 28, 1977, neither petitioner nor any of its customers paid any tax on account of petitioner's sales of LPG, other than LPG used by its customers to propel trucks. Petitioner's customers kept records as to how much LPG was sold by them for home cooking or heating use by their customers, the ultimate consumers. Until the summer of 1977, petitioner's customers who used LPG as truck fuel kept records of how far the trucks so fueled were driven. Using the resulting mileage figure, they calculated the amount of LPG that had been used as truck fuel. Until the summer of 1977, petitioner collected from its customers a tax of eight cents ($.08) per gallon on LPG used as truck fuel. During the period from July 1, 1975, through February 28, 1977, none of petitioner's Florida customers held Florida dealer's licenses, except Gene Lewis Auto Brokers, which obtained a license as a special fuel dealer in August of 1976. Also in August of 1976, Gene Lewis Auto Brokers purchased 2,052 gallons of LPG from petitioner, on which no tax was paid. Thereafter, the same customer bought 41,011 gallons from petitioner in the period ending February, 1977, on which no tax was paid. Petitioner made tax returns monthly, using forms furnished by respondent. With respect to respondent's Form DR-115-F, styled "Special Fuel Sold . . . Within the State to Licensed Dealers Tax-Free," general instructions furnished to petitioner by respondent provided: To be used in support of claims for exemp- tion ... for sales ... to other licensed dealers. Signed resale certificates ... which bear the name and address of the pur- chaser and the number of his dealer's license are required to be retained in the seller's permanent file .... Petitioner's exhibit No. 2. (emphasis supplied) Monthly, petitioner listed on Form DR-115-F the amounts of LPG sold to its Florida customers, less amounts its Florida customers advised had been used to propel trucks. On another form furnished by respondent, Form DR-115-J, petitioner listed monthly, by county, the LPG used by its Florida customers to propel motor vehicles and on which petitioner had collected tax at the rate of eight cents ($.08) per gallon. At the time petitioner filed its monthly tax return, it forwarded to respondent the taxes it had collected from its Florida customers. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which appears as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's assessment be upheld with respect to petitioner's tax deficiency, except for the portion attributable to sales by petitioner to Gene Lewis Auto Brokers after August of 1976, being three thousand two hundred eighty and eighty-eight hundredths dollars ($3,280.88). That interest and penalty be adjusted accordingly. DONE and ENTERED this 8th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. John Radey, Esquire Holland & Knight Post Office Drawer 810 Tallahassee, Florida 32302 Mr. Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32304 APPENDIX Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, except that the evidence did not show that petitioner's customers used LPG for home heating or cooking, only that persons to whom petitioner's customers sold used the LPG in this fashion. Paragraph two of petitioner's proposed findings of fact has been adopted in substance. Paragraph three of petitioner's proposed findings of fact has been adopted in large part. The gist of the information supplied to petitioner by its dealers was that LPG not used by them would be resold to domestic users. Although respondent did not undertake to determine whether petitioner listed the same LPG as taxable and as tax-exempt on the same tax return, there is no reason to believe that petitioner did so. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, except that petitioner's tax returns were inaccurate as to its customers' status as dealers. The final three paragraphs of petitioner's proposed findings of fact accurately reflect evidence adduced at the hearing, but are not relevant to a decision of this controversy.
The Issue Whether Respondent properly fined Petitioner the sum of $647.00 for the reasons set forth in the Load Report Citation Number 029011M, issued March 5, 1997.
Findings Of Fact Petitioner is the owner of Keys Marine Drilling, which operates in Monroe County, Florida. Petitioner uses a large floating pile driver in his business. This pile driver is usually stored on Petitioner's property until it is needed on the job site. The pile driver usually remains on the job site until the job is completed. At all times pertinent to this proceeding, Petitioner was the owner and operator of a 1978 Ford van. This van had been licensed as a “collectible” vehicle and had a gross vehicle weight of 10,000 pounds. On March 5, 1997, Petitioner was driving his van on U. S. 1 in Monroe County. Petitioner was using his van to tow the floating pile driver, which had been placed on a trailer. On March 5, 1997, Jorge Fernandez Delara, a motor vehicle compliance officer employed by Respondent observed that Petitioner did not stop at a weigh station at Plantation Key. Officer Delara immediately thereafter stopped Petitioner. On the instructions of Officer Delara, Petitioner returned to the weigh station.1 Officer Delara determined that Petitioner had registered his van as a collectible vehicle.2 This registration would not permit Petitioner's vehicle to have a gross vehicle weight in excess of 10,000 pounds. Officer Delara weighed Petitioner’s van, trailer, and the load on the trailer, and determined that the combined weight was 22,940 pounds. Thereafter, Officer Delara issued to Petitioner the citation that is at issue in this proceeding. Officer Delara correctly determined that Petitioner’s van's registration was not proper.3 He determined that Petitioner’s rig was 12,940 pounds overweight. He thereafter fined Petitioner the sum of $647.00, which is calculated, pursuant to Section 316.545(2)(b), Florida Statutes,4 by multiplying the number of pounds the rig was overweight by $0.05.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order that sustains the fine imposed against Petitioner. DONE AND ENTERED this 10th day of February, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1998.
