87-003962 Department Of Highway Safety And Motor Vehicles vs. Murphy's Towing Status: Closed Recommended Order on Friday, July 22, 1988.

Summary: Wrecker services which do not maintain places of business in designated zones maybe removed from agency's wrecker allocation rotation lists for zone

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, DIVISION )

OF FLORIDA HIGHWAY PATROL, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3962

)

MURPHY'S TOWING, )

)

Respondent. )

_______________________________)

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, DIVISION )

OF FLORIDA HIGHWAY PATROL, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4011

)

LYONS' AUTO BODY, INC., )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

This is a consolidated action of two Administrative Complaints filed by the

Department of Highway Safety and Motor Vehicles (DHSMV) against Murphy's Towing

("Murphy's"), and Lyons' Auto Body, Inc. (Lyons), respectively. A Rule

Challenge (DOAH Case No. 87-4975R) was also consolidated with this action, but

it is the subject of a separate order.

Upon due notice, formal hearing was conducted February 16, 1988, in West

Palm Beach, Florida, by Ella Jane P. Davis, the duly designated Hearing Officer

of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Odette Marie Bendeck, Esquire,

Mark T. Luttier, Esquire

777 South Flagler Drive, Suite 500

West Palm Beach, Florida 33401-6194

For Respondent: R. W. Evans, Esquire,

Judson M. Chapman, Esquire

Department of Highway

Safety and Mother Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399-0504

ISSUE, BACKGROUND AND PROCEDURE

Section 321.051, Florida Statutes, authorizes the creation of a system for

utilizing qualified wrecker operators to remove wrecked, disabled or abandoned

vehicles from highways within designated zones within each county. The

Department of Highway Safety and Motor Vehicles created a rotation system in

which wrecker operators within designated zones are called on a rotating basis

to respond to Florida Highway Patrol (FHP) calls.

The Administrative Complaints served on Murphy's and Lyons' are virtually

identical. The Department alleges that Murphy's (in Zones 2, 4 and 5 of Palm

Beach County) and Lyons' (in Zones 1 and 3 of Palm Beach County) should be

removed from the wrecker rotation system established under Section 321.051,

Florida Statutes (1987), and administered under Chapter 15B, Florida

Administrative Code, for failure to comply with the following rules and

policies:

A. 15B-9.003(2)

B. 15B-9.003(3)

C. 15B-9.003(8)

D. 15B-9.003(9)

E. 15B-9.004(4)

F. Non-Rule Policy interpreting place of

business under Rule 15B-9.003(2) which

requires the following:

i. There must be a sign on the building

that identifies it to the general public as

a wrecker establishment;

ii. There must be office space;

iii. The office must have personnel on duty

at least from 9:00 a.m. to 4:00 p.m., Monday

through Friday;

iv. There must be a phone at the place of

business;

v. Tow trucks must be stationed at the

place of business;

vi. The tow trucks must have the zone

address and phone numbers on them.

The parties' stipulated that there would be a unified record; that is, all

evidence and testimony would be applicable to the Administrative Complaint

proceeding and to the rule challenge proceeding. Oral testimony was received

from Lt. Col. Carmody, FHP; Lt. Wessels. FHP Howard Kauff. Harold Murphy and

Donald Lyons. DHSMV's Exhibits 2-9 were admitted. DHSMV withdrew its proposed

Exhibit 1. Murphy's and Lyons' Exhibits 1-4 were admitted in evidence.

A transcript of proceedings was provided and the parties have submitted

proposed findings of fact and conclusions of law, the proposed findings of fact

of, which have been ruled upon in the appendix hereto pursuant to Section

120.59(2), Florida Statutes.

FINDINGS OF FACT

1. Respondents Murphy's and Lyons' are both engaged in the business of

removing wrecked, disabled, stolen or abandoned motor vehicles on Florida

highways. Pursuant to Section 321.051, Florida Statutes, Petitioners are

eligible for, and participate in, the system established by the DHSMV for

utilizing qualified, reputable wrecker operators for removal of wrecked or

disabled vehicles from accident scenes or the removal of abandoned vehicles when

the owner or operator is incapacitated, unavailable, or leaves the procurement

of wrecker service to the officer at the scene (hereafter referred to as "FHP

wrecker rotation system").

2. Respondents are each charged in an Administrative Complaint indicating

that FHP intends to remove Respondents from each respective zone's wrecker

rotation system list for Respondents' respective alleged failure, among other

offenses, to comply with the "place of business" requirement of Rule 15B-

9.003(2), Florida Administrative Code, and the unpromulgated non-rule "policy"

interpreting the term, "place of business" as used in that rule. Petitioners

received such notice by hand-delivery of the respective Administrative

Complaints dated July 22, 1987.

3. The FHP wrecker rotation system includes designated zones and qualified

wrecker operators within those zones. When a wrecker is needed to respond to an

accident or to a motorist, FHP calls the wrecker at the top of the list and then

rotates this wrecker down to the bottom of the list. By rotating each wrecker

on the rotation list following dispatch by FHP, each participating wrecker

service is afforded an equal opportunity to service a call. See Rule 15B-

9.003(3), Florida Administrative Code.

4. In Palm Beach County, FHP designated six zones; twenty-two wrecker

businesses have qualified to participate as rotation wreckers. These wrecker

companies vary according to their size and operation; qualified wrecker

operators include companies with as few as one or two wreckers to as many as

thirty trucks. Murphy's Towing, Lyons' Auto Body, and Kauff's Towing are among

those currently operating in Palm Beach County in one or more zones of the FHP

wrecker rotation system.

5. Petitioner Murphy's Towing has participated in the wrecker FHP rotation

system for eight years. Murphy's Towing maintains approximately thirty trucks

and operates in four zones in Palm Beach County. It maintains storage areas in

each zone. As a result of its fleet of wreckers, Murphy's is able to use a

roving patrol operation. When a call is received by Murphy's Towing from FHP, a

central dispatcher operating 24 hours per day assigns a Murphy's truck which is

patrolling in an assigned zone to respond to the call. In individual instances,

this system may actually cut or increase response time within zones from what it

might be if a truck were dispatched each time from a stationary place of

business within the zone. Presently, wrecker services in Palm Beach County will

dispatch the closest vehicle, regardless of the address of the wrecker truck or

the location of the wrecker, even across zone lines.

6. Murphy's operates in Zones 2, 3, 4 and 5, and has obtained an

occupational license in each of those zones without difficulty concerning

whether it maintains a place of business at these locations. The Administrative

Complaint seeks to remove Murphy's from rotation lists for Zones 2, 4, and 5.

7. Murphy's location in Zone 2 is part of an auto paint and body shop

owned by another individual. The body shop has a phone, office space and

personnel on duty from 9:00 a.m. to 4:00 p.m. These personnel are not on

Murphy's payroll, but Murphy's has an understanding with the body shop owner

that the body shop will answer for Murphy's and assist the public as necessary.

Murphy's locations in Zones 4 and 5 are run in the same manner as his Zone 2

location. Murphy's does not own these locations but has an arrangement with the

owner to use space at these locations.

8. In Zones 2, 4 and 5, Murphy's informal arrangements do not include

employment of personnel on the premises and do not regulate those persons' work

hours or work performed. Although a telephone is on the premises, that business

telephone number is not necessarily made available to the public. Murphy's

maintains no offices, telephone service, wreckers, or personnel at any of these

locations.

9. Murphy's maintains trucks within each of the zones and requires the

truck drivers to live in the zone they service so that the trucks remain in the

zone.

10. Murphy's uses a central dispatch system to receive incoming calls from

FHP and the public. The central dispatch is manned 24 hours a day and contacts

the trucks which are roving within their designated zone via radio to dispatch

them to the accident scene.

11. Murphy's tows vehicles to the storage location in the zone in which

the vehicle is picked up unless the owner requests otherwise. The owner is

given a card by the driver which has four phone numbers, including the central

dispatch number on it, in order to assist the owner in retrieving the vehicle.

12. When owners call Murphy's to pick up their vehicles, their call is

received by central dispatch. Arrangements are made for a truck within the zone

to meet the owner to release the vehicle. Alternatively, an employee of the

property owner will assist the public with release of the vehicle. Murphy's has

received no public complaints of untimely response to requests for release.

13. Petitioner Lyons' Auto Body, Inc., has participated in the FHP wrecker

rotation system for twenty years. Lyons' Auto Body, Inc. maintains seventeen

trucks and operates in three zones in Palm Beach County. Lyons' Auto Body, Inc.

also uses a central dispatch operation similar to that employed by Murphy's

Towing.

14. Lyons' operates in three zones and has obtained an occupational

license in each of those zones. The Administrative Complaint seeks to remove

Lyons' from the rotation lists for Zones 1 and 3.

15. In Zone 1, Lyons' maintains a fenced storage yard, and in Zone 3,

Lyons' maintains a fenced storage yard with an office and phone.

16. Lyons' trucks are located in the respective zones and remain in the

respective zones, unless they have a request to go outside to deliver a car.

After hours, the trucks are taken to the respective driver's home and the

drivers are required to live in their respective zones.

17. When Lyons' tows for FHP, owners are given a card when the vehicle is

picked up. If the owner is not present, the card is given to the FHP Trooper.

There is a zone number on the card so the owner may make arrangements to release

the vehicle. Lyons' has received no public complaints about release time

response.

18. Until FHP promulgated rules which took effect January 22, 1986,

including the challenged Rule 15B-9.003(2), Florida Administrative Code, the

general operation of the wrecker rotation system was governed by written

guidelines and policies established by the local troop commanders, but these

written guidelines apparently never embraced the term "place of business" nor

defined it. (TR 67-69, 102).

19. Since that date, however, there has been such a duly promulgated rule,

Rule 15B-9.003(2), Florida Administrative Code, which provides:

To be eligible for approval to tow in a

particular zone, the wrecker operator's

place of business must be located in that

zone, except that if there are no

qualified operators in a particular zone,

the Division Director or his designee may

designate qualified out of zone wrecker

operators to be called in that zone.

This rule was determined to be a valid exercise of legislatively delegated

authority in the rule challenge case originally consolidated herewith.

20. At the time of the promulgation of Rule 15-9.003(2), Florida

Administrative Code, in January, 1986, "place of business," as the term is used

in that rule, was not defined under Chapter 321, Florida Statutes or Chapter 15-

9, Florida Administrative Code. Because Lt. Col. Carmody believed "place of

business" was already defined by common sense and thirty-two years of common FHP

interpretation so as to already include a sign, office space, personnel on

location in the zone, wreckers on location in the zone, and zone addresses and

phone numbers painted on each wrecker, Lt. Col. Carmody did not feel that it was

necessary to promulgate an additional rule defining "place of business."

Instead, Lt. Col. Carmody gave his "common sense" definition orally when

occasional inquiries were made.

21. By letter dated January 19, 1987, Howard Kauff, Chairman of the Board

of Palm Beach Services, Inc., d/b/a, Kauff's Towing in three FHP zones in Palm

Beach County requested of FHP the definition of "place of business." His letter

set out six criteria stating what he understood to be the definition of "place

of business."

22. Lt. Col. Carmody responded to Howard Kauff by memorandum dated

February 5, 1987. Carmody sent a copy of that memorandum to Inspector William

A. Clark, Bureau Chief in charge of Troop L and to Major William R. Driggers,

Troop Commander, Troop L, for the purpose of enforcing Rule 15B-9.003(2) and

correcting alleged violations, but he intended for the six criteria identified

in his memorandum to have statewide effect. The six non-rule policy criteria

incidental to Rule 15B-9.003(2), which were identified by Lt. Col. Carmody in

his memorandum to Howard Kauff, and circulated to all of Troop L, were as

follows:

i. There must be a sign on the building

that identifies it to the general public as

a wrecker establishment;

ii. There must be office space;

iii. They must have personnel on duty at

least from 9:00 a.m. to 4:00 p.m., Monday-

Friday.

iv. There must be a phone at the place

of business;

v. Tow trucks must be stationed at the

place of business;

vi. The tow trucks must have the zone

address and phone numbers on them.

The non-rule policy in Carmody's memorandum, which for the first time

interpreted, in writing, the term "place of business," virtually adopts the

criteria suggested in Mr. Kauff's letter, with only two exceptions. Lt. Col.

Carmody did not disseminate a similar memorandum to all troop commanders

throughout the State of Florida until January 8, 1988. (See Finding of Fact

28).

23. Upon receiving Lt. Col. Carmody's response of February 5, 1987, Howard

Kauff wrote Captain Hardin of Troop L, asking for removal of several wrecker

operators, among them, Murphy's and Lyons', which operators Kauff had identified

as allegedly failing to comply with the six "place of business" criteria

specified by Lt. Col. Carmody.

24. Lt. Wessels subsequently conducted an investigation to determine if

any of the wrecker services identified by Howard Kauff were in fact in violation

of Rule 15B-9.003(2), as interpreted by Lt. Col. Carmody's memorandum of

February 5, 1987. For varied reasons, including not being able to locate some

satellite business addresses, Lt. Wessels concluded that eight companies did not

comply with the policy criteria and recommended their removal from the

appropriate rotation list. Lt. Wessels inspected the locations of Murphy's

Towing in Zone 2 (Juno Beach and Riviera Beach), Zone 4 (Lake Worth) and Zone 5

(Hypoluxo) on April 7, 1987. The inspections revealed a vacant lot at the Juno

Beach location with a sign indicating "Dad Auto Broker, Inc." and a business

identified as "Elite Paint and Body Shop" at the Riviera Beach location.

Members of the Highway Patrol could not locate the Lake Worth and Hypoluxo

addresses, but admittedly, no one phoned ahead for directions. No wreckers were

present at the addresses found. Lt. Wessels also inspected the locations of

Lyons' Auto Body in Zone 1 (Jupiter) and Zone 3 (West Palm). The inspections

revealed a small fenced lot at the Jupiter location with a sign, "Lyons Auto

Body, Inc." and the address and phone number, and a fenced lot with an

unoccupied building which maintained a sign indicating the name, address, and

phone number at Palm Beach. No wreckers were present at Jupiter. At least

three wreckers were present at the Zone 3 (West Palm Beach) location, but no

personnel were observed. Petitioners Murphy's Towing and Lyons' Auto Body, Inc.

were included in the eight wrecker services identified by Lt. Wessels.

25. Following Lt. Wessels' investigation, FHP issued to the eight wrecker

companies Orders to Show Cause why they should not be removed from the

appropriate rotation list. Three of the wrecker services complied with the

"place of business" requirement. Wessels recommended that the remaining five,

which included both Petitioners Murphy's and Lyons' be removed. Pursuant to

Wessels' recommendations, the Department issued Administrative Complaints

against the five wrecker operators. Three wrecker operators were removed from

this respective list--two voluntarily and one by Order of the DHSMV.

26. Murphy's has participated in the wrecker rotation system for eight

years without any complaint, citation, or criticism for untimely response. Its

main place of business and wreckers have been inspected each of the years

immediately prior to service of the Order to Show Cause without any FHP comment

on its failure to comply with the "place of business" rule or non-rule policy,

despite Lt. Wessels' being aware of Murphy's multi-zone operation as early as

May 16, 1986. The July 22, 1987, Administrative Complaints against the

Petitioners enunciate only the non-rule policy as it had evolved up to February

5, 1987, and as set out in Finding of Fact 22 supra., not as it had evolved as

of the January 8, 1988, statewide memorandum described in Finding of Fact 28

infra. Lyons' has participated in the wrecker rotation system for twenty years

without any FHP concerns over untimely response. Its history of successful

yearly inspections and no FHP comment concerning the "place of business" rule

and non-rule policy has been identical to Murphy's for the last three years

immediately preceding the Order to Show Cause.

27. Murphy's and Lyons' are two of Kauff's largest competitors. Of the

ten multi-zone wrecker operators in Palm Beach County, only Mr. Kauff's and one

other met the criteria suggested by Kauff's letter and enforced by non-rule

policy prior to the Orders to Show Cause. See Finding of Fact 25.

28. Lt. Col. Carmody did not disseminate a memorandum covering the non-

rule policy to all troop commanders throughout the State of Florida until

January 8, 1988. He did circulate such a memorandum on that date, but only

after his deposition had been taken in the instant and companion rule challenge

case. At the time Lt. Col. Carmody corresponded with Howard Kauff on February

5, 1987, Palm Beach County was the only area, to his knowledge, which had

experienced problems with the "place of business" interpretation because of the

use of multiple zone wreckers. Lt. Col. Carmody had no knowledge of similar

problems in any other area of the state at that time. Testimony of Carmody and

Wessels at formal hearing confirmed this to also currently be the case.

Specifically, there is affirmative evidence that FHP has experienced no similar

use of wreckers in multiple zones in the Fort Myers area and no requests for

interpretation of the rule from that area of the state or any other. Carmody's

January 8, 1988, memorandum was intended to insure uniform application of the

six "place of business" criteria which Carmody had previously assumed where

generally known and applied throughout FHP. The January 8, 1988 statewide

memorandum contained some further refinements and embellishments of the language

contained in the earlier memorandum to Kauff and Troop L in Palm Beach County,

but the only substantive changes were that for the fifth criterion, the wrecker

operator was required to "maintain at least one tow truck at the place of

business" and for the sixth criterion, the zone address and phone numbers must

be "clearly visible to the public." The 1988 memorandum also contained the

further directive that:

I recommend that you correspond with each

wrecker operator to give the wrecker

service notice that the above criteria must

be met for the wrecker to comply with the

requirements of Rule 15B-9.003(2).

Subsequent inspections by FHP personnel of

wrecker service shall require compliance

noted and the wrecker service given an

opportunity to correct any deficiency. If

the wrecker operator fails to correct any

violation after notice by FHP personnel,

Order to Show Cause should be issued to the

wrecker service advising that noncompliance

will result in the removal of the wrecker

service from the rotation list. Following

the issuance of the Order to Show Cause,

the Office of General Counsel should be

advised to take action to remove the

wrecker service from the rotation list if

the wrecker service has failed to comply

with the place of business criteria.

[Emphasis supplied, Exhibit P-4.]

The non-rule policy appears then to have evolved at least by that point in time

to clearly include written warnings prior to enforcing the criteria at a

subsequent inspection. The parties have, however, stipulated that as to the six

enumerated criteria, the language employed in February 1987, not January 1988,

is the non-rule policy FHP is enforcing and intends to enforce. Other evidence

suggests that it was always the Patrol's practice that warnings precede an Order

to Show Cause.

29. In January, 1988, FHP learned that Kauff's Towing did not maintain

office personnel at its business location in Lake Worth, Zone 4 from 9:00 a.m.

to 4:00 p.m., Monday through Friday. Kauff was verbally advised by FHP of the

noncompliance. This notice was followed by written confirmation on January 20,

1988 and February 10, 1988. In response to this notice by FHP, Howard Kauff

directed his terminal manager to provide personnel at the location during the

required time period. Kauff was advised that noncompliance with the criteria

would result of removal of Kauff's from the rotation list in Zone 4, Palm Beach

County.

30. At formal hearing, Lt. Col. Carmody stated that his memoranda did not

address whether outside or inside storage must be available in a zone. In his

opinion, FHP could not regulate that aspect due to prior Attorney General

Opinion 85-60. He opined that a wrecker operator's using a central dispatch may

be sufficient although the criteria he seeks to enforce requires a phone at each

place of business. Lt. Wessels essentially concurred. Lt. Wessels was unsure

how response time would be adversely affected if a truck were maintained in the

assigned zone but there was not a building located in the assigned zone or if a

tow truck were not physically located at the building location designated as a

place of business in the zone but was either patrolling in the zone or parked

elsewhere in the zone. Lt. Wessels was unable to testify whether ownership or

rental of a building by an operator had significance with regard to the "place

of business" rule or the six non-rule policy criteria. Lt. Wessels would

accept, within the six criteria, an operator's use of a storage lot maintained

by the lot's owner who was not an employee of the wrecker operator. However, it

was not demonstrated that Lt. Wessels is in a policy making position for the

agency, and his testimony as to the foregoing matters at best demonstrates some

further confusion as to how the six interpretative non-rule policy criteria are

to be applied on a case by case basis. It does not demonstrate that those six

criteria have been applied to Petitioners in any unequal fashion, merely that

application of the six criteria is best made on a case by case basis.

31. In the course of discovery, Respondent agency denied the following

Request for Admission, "2. Admit that the interpretation of the place of

business requirement has not been equally applied to all wrecker operators in

the State of Florida." The evidence as a whole does not demonstrate such

unequal application of the promulgated rule or the non-rule policy to

Respondents in this cause. Nor is the proof sufficient to establish such

arbitrary application to Respondents so as to permit them to avoid the necessity

for compliance. Apparently, as of the date of formal hearing, both rule and

non-rule policy are being applied evenhandedly in Palm Beach County where

violations have been documented. The testimony of Lt. Col. Carmody and Lt.

Wessels demonstrates that no reports of violation have been made from other

counties. Respondents did nothing to refute this testimony nor did they provide

any evidence of multiple zone operators in other counties or zones outside of

Palm Beach County who were systematically permitted to evade the rule and/or

non-rule policy.

32. The non-rule policy has been sufficiently explicated in the course of

this proceeding so that it may be applied with reasonable precision. The

agency's primary purpose behind the place of business non-rule policy, as is its

purpose for Rule 15B-9.003(2) itself, is to insure prompt response time, which

Lt. Col. Carmody and Lt. Wessels view as impacting on overall traffic safety.

Specifically, the concerns of FHP are that without a sign on the place of

business, the wrecker operator is difficult to locate. Lt. Wessels personal

experience in being unable to locate certain operators during his subsequent

investigation in preparation for the Administrative Complaints demonstrates this

concern is valid. A sign assists the public in locating the wrecker service for

retrieval of towed vehicles or personal property. It assists in accident

investigation and reconstruction by providing quick access to the towed vehicle

by insurance investigators/appraisers and by FHP. The office space requirement,

the requirement of a telephone on the premises, and the requirement of the

presence of office personnel during reasonably specified business hours

encourages wrecker services to serve the public by receiving phone calls,

permitting payment of towing bills or securing the release of vehicles or

personal property, and assists in dispatching wreckers in timely response to FHP

rotation call made by telephone. It was established that in Palm Beach County,

at least, FHP rotation calls are, in fact, made by telephone. It is noted that

these foregoing criteria relating to telephone contact are also consistent with

unchallenged Rule 15B-9.003(8) and (9) and that the hours of 9:00 a.m. to 4:00

p.m. are considerably less for office personnel than the 24 hours per day "on

call" status specified in Subparagraph (9). These foregoing requirements help

to insure a reasonable response time, as does the requirement that the wrecker

be stationed at the place of business within the zone. The requirement that the

wrecker be stationed at the place of business within the zone also facilitates

timely inspections of each vehicle by the FHP. Painting the name, address, and

telephone number on each truck fosters accountability of the wrecker operators,

insures the reasonable response time due to their presence within the zone, and

it may be inferred from all other evidence that it discourages vehicle equipment

from being moved from truck to truck. It is further noted that the truck sign

requirement is also consistent with Section 715.07(2)(a)7, Florida Statutes,

regulating the towing of vehicles from private property.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause pursuant to Sections 120.57(1) and

120.60(7), Florida Statutes.

34. Petitioner's authority to establish a wrecker operator call allocation

system is established pursuant to Sections 321.051 and 321.14, Florida Statutes.

35. Petitioner has adopted Rule Chapter 15B-9, Florida Administrative

Code, implementing Section 321.051, Florida Statutes. Rules 15B-9.003(2) and

(3) require operators to maintain a place of business within the zone they

serve. Rule 15B-9.003(2) was challenged in a companion case and found to be

valid in a separate order.

36. Respondents are charged in the respective Administrative Complaints

with violations of Rules 15B-9.003(2), (3), (8), and (9) and Rule 15B-9.004(4),

Florida Administrative Code, and with violation of the following non-rule policy

adopted February 5, 1987 and specifically set forth in the respective Orders to

Show Cause issued April 10, 1987 and the respective Administrative Complaints

issued July 22, 1987.

37. Florida Administrative Code Rules pertinent to this cause provide:

15B-9.003--

(2) To be eligible for approval to tow in

particular zone, the wrecker operator's

place of business must be located in that

zone, except that if there are no qualified

operators in a particular zone, the

division director or his designee may

designate qualified out-of-zone wrecker

operators to be called in that zone.

(3) Wrecker operators located within a zone

as defined herein shall be called for the

removal of a wrecked, disabled, stolen or

abandoned vehicle by a division according

to the operator's placement on a wrecker

rotation list a as maintained for that zone

by the division and according to the

wrecker classification for a size of the

vehicle to be towed. Wrecker operators

will be called in succession from the top

of the list. Following each call an

operator will be rotated to the bottom of

the list except as provided herein. An

operator may respond to a call with a tow

truck classified to meet or exceed the size

of the vehicle to be towed.

(8) ... Wrecker operators shall have one

day and one night telephone number ...

(9) Wrecker operators shall be on call

twenty-four hours a day, seven days a week.

15B-9.004--

(4) When a vehicle is released at the

scene by the investigating trooper or

representative of the division, the wrecker

operator shall tow to any location the

owner requests within the limits of the

zone.

38. The non-rule policy with which Respondents are charged provides:

i. There must be a sign on the building

that identifies it to the general public as

a wrecker establishment;

ii. There must be office space;

iii. The office must have personnel on

duty at least from 9:00 a.m. to 4:00 p.m.

Monday through Friday;

iv. There must be a phone at the place of

business;

v. Tow trucks must be stationed at the

place of business;

vi. Tow trucks must have the zone address

and phone numbers on them.

39. Rule 15B-9.007 sets forth grounds for denial, removal or suspension

from the rotation list, to include failure to comply with the rules.

40. The Department has carried its burden in explicating the six non-rule

criteria set forth above, however it has also been shown that the criteria set

forth above has evolved yet further since the filing of the administrative

complaints and has always required some notification or warning prior to service

of an Order to Show Cause.

41. The Administrative Complaint seeks to remove Murphy's from Zones 2, 4

and 5. Evidence adduced at hearing shows clearly that with regard to Murphy's

in Zones 2, 4 and 5, there is no sign identifying the location as Murphy's and

the office space and telephone, if any, is manned by persons not controlled by

Murphy's. The fact that the personnel on the premises are not direct employees

of Murphy's is insignificant; the fact that Murphy's has no direct formal

control over them is significant. The fact that the phone is not registered to

Murphy's or made public and that two of the locations cannot be located readily

by the FHP clearly militates against there being a "place of business" in the

zone as the term "place of business" is normally understood even if only the

Rule 15B-9.003(2) were applied and not the non-rule policy. That wreckers were

not found at all locations does not constitute a violation of the non-rule

policy, given the broad parameters testified to for how the word "stationed" may

be interpreted. There has, however, been no proof of Murphy's violation of

Rules 15B-9.002(3), (8), (9) or 15B-9.004(4). Specifically, subsection (8) does

not require two separate day and night phone numbers nor does it require that

the phone number be specifically assigned to each place of business by zone.

Rules 15B-9.003(3) and 15B-9.00(4) do not prohibit towing outside a zone if

requested by an owner. Moreover, Rule 15B-9.003(10) permits crossing zone lines

upon appropriate call by a trooper, and the non-rule policy as explicated here

does not preclude a dispatch system as testified by Lt. Col. Carmody.

42. The Administrative Complaint seeks to remove Lyons' from Zones 1 and

3. Evidence adduced at hearing shows that with regard to Zone 1, Lyons has

failed to comply both with the rule requiring a "place of business" as that term

is commonly understood, and with the majority of the non-rule policy's six

criteria. With regard to Zone 3, it appears that Lyons' complies with the rule

and all six of the non-rule policy criteria except that on one day's inspection,

the FHP found its building unoccupied. Therefore, as to Lyons' in Zone 3, the

evidence of violation is not clear and convincing.

43. Petitioner has carried its burden in explicating the six non-rule

criteria but has shown the respective Respondents to be in violation only as set

out above. Gulf Coast Home Health Service of Florida, Inc. v. State Department

of Health and Rehabilitative Services, 513 So.2d 704 (Fla. 1st DCA 1987);

McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA

1977). The six place of business criteria are further recognized as falling

within the range of the Department's delegated authority. General Telephone of

Florida v. Florida Public Service Commission, 446 So.2d 1063 (Fla. 1984);

Department of Professional Regulation, Board of Medical Examiners v. Durrani,

455 So.2d 515 (Fla. 1st DCA 1984).

44. Of some concern in this case, however, is that these Respondents

appear never to have received any warnings prior to the Order to Show Cause.

Such informal warnings have always been contemplated by the evolving non-rule

policy. For that reason, it behooves the Department to provide, in its Final

Order, for some additional time for compliance prior to removal of either

Respondent from any list.

45. Respondents are not entitled to attorney's fees, costs, and sanctions

associated with an improper denial of a Request for Admission.

46. With regard to the constitutional issues raised by the Respondents,

Hearing Officers of the Division of Administrative Hearings have no authority to

dispose of such issues. See, Cook v. Parole and Probation Commission, 415 So.2d

845 (Fla. 1st DCA 1982).

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law it is

recommended that the Department of Highway Safety and Motor Vehicles enter a

final order providing:

1. That unless Murphy's Towing establishes, in each respective zone, a

place of business as defined by rule and non-rule policy, within 30 days from

date of the final order, Murphy's shall be summarily removed from the FHP

wrecker rotation lists for Zones 2, 4, and 5 in Palm Beach County.

2. That unless Lyons' Auto Body establishes, in Zone 1, a place of

business as defined by rule and non-rule policy, within 30 days from date of the

final order, Lyons' shall be summarily removed from the FHP wrecker rotation

list in Zone 1 in Palm Beach County.

DONE and ORDERED this 22nd day of July, 1988, at Tallahassee, Florida.

_________________________________

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-3962, 87-4011

The following constitute rulings upon the parties' respective proposed

findings of fact (PFOF).

Petitioner DHSMV

1. Accepted in FOF 3.

2. Accepted in FOF 4.

3-4. Accepted in FOF 24.

5-6. Accepted in FOF 18-22.

7-8. Subordinate and unnecessary.

9-10. Accepted in FOF 21, except as unnecessary.

11-12. Accepted as modified to conform to the competent substantial

evidence as a whole 21-23, 32.

13. Accepted in FOF 28.

14. Accepted in FOF 23.

15-17. Accepted as modified to conform to the record in FOF 8, 11, 24.

18-19. Accepted in FOF 25.

20. Accepted in FOF 26-27.

21. Accepted in FOF 8, 12.

Respondents Murphy and Lyons

1. Accepted in FOF 6.

2-3. Accepted in FOF 7.

4. Accepted in FOF 9.

5. Accepted in FOF 10.

6. Accepted in FOF 11.

7. Accepted in FOF 12.

8-15. Accepted in FOF 24, 26.

16-18. Accepted in FOF 24.

19-23. Accepted in FOF 13-17.

24-27. Accepted in FOF 26.

28-29. Accepted in FOF 18-20.

30-31. Accepted in FOF 21-22, 28.

32. Accepted in FOF 18-22, 28.

33. Accepted as to studies. Rejected as to the rest upon the greater

weight of the evidence as a whole in FOF 18-22, 28.

34. Accepted in FOF 32.

35-37 Subordinate and unnecessary.

38-39. Accepted in FOF 30.

40. Accepted in FOF 28.

41. Accepted in FOF 23.

42. Accepted in FOF 27.

43. Accepted as modified to conform to the record in FOF 27.

44. Accepted in FOF 24.

45. Accepted in FOF 29.

46-49. Accepted in FOF 30.

50. Rejected as set forth in the full FOF and Conclusions of Law.

COPIES FURNISHED:

Leonard R. Mellon, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399-0504

R. W. Evans, Esquire

Judson Chapman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399-0504

Mark T. Luttier, Esquire

Michael S. Tammaro, Esquire

Odette Marie Bendeck, Esquire

777 South Flagler Drive

Suite 500

West Palm Beach, Florida 33014-6194

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES

DEPARTMENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES, DIVISION

OF FLORIDA HIGHWAY PATROL,

Petitioner,

vs. DOAH CASE NO.: 87-3962

MURPHY'S TOWING,

Respondent.

______________________________/

DEPARTMENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES, DIVISION

OF FLORIDA HIGHWAY PATROL,

Petitioner,

vs. DOAH CASE NO.: 87-4011

LYON'S AUTO BODY, INC.,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to Rule 15B-9.006, Florida Administrative Code, this matter came

before the undersigned for entry of a final order upon submission of the hearing

officer's Recommended Order dated July 22, 1988. Having considered the

Recommended Order and the exceptions thereto filed by the Agency, the Department

adopts the Findings of Fact set forth in the Recommended Order. The Department

adopts the Conclusions of Law except as modified below.

The last two sentences of the first full paragraph on page 22 of the

Recommended Order are stricken and the following conclusion of law is

substituted:

"With regard to zone 3, Finding of Fact 24 clearly establishes that no

personnel were observed at Lyon's Zone 3 location when it was inspected by the

FHP (Finding of Fact 24). The presence of personnel from 9:00 a.m. to 4:00 p.m.

each weekday is included within the Department's six "place of business"

criteria (Finding of Fact 22). Therefore, Lyons does not fully conform to the

Department's rule and criteria for Zone 3."

WHEREFORE, based upon the foregoing, it is hereby ORDERED:

1. That unless Murphy's Towing establishes, in each respective zone, a

place of business as defined by rule and non-rule policy, within 30 days from

date of this final order, Murphy's shall be summarily removed from the FHP

wrecker rotation lists for Zones 2, 4, and 5 in Palm Beach County.

2. That unless Lyon's Auto Body establishes, in Zones 1 and 3, a place of

business as defined by rule and non-rule policy, within 30 days from date of

this final order, Lyon's shall be summarily removed from the FHP wrecker

rotation lists for Zones 1 and 3 in Palm Beach County.

DONE AND ORDERED this 13th day of September, 1988.

___________________________________

BOBBY R. BURKETT, Colonel

Director, Florida Highway Patrol

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A432

Tallahassee, Florida 32399

Telephone: [phone]

Filed with the official records

of the Division of Florida

Highway Patrol this 13th day

of September, 1988.

COPIES FURNISHED TO:

R. W. Evans, Esquire

Judson M. Chapman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A432

Tallahassee, Florida 32399-0504

Odette Marie Bendeck, Esquire

Mark T. Luttier, Esquire

Michael S. Tammaro, Esquire

777 South Flagler Drive

Suite 500

West Palm Beach, Florida 33014-6194

Ella Jane P. Davis, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550