87-004975RX Murphy&Apos;S Towing And Lyons Auto Body, Inc. vs. Department Of Highway Safety And Motor Vehicles Status: Closed DOAH Final Order on Friday, July 22, 1988.

Summary: Rule 15-9.003(2) on "Place of Business"for wrecker services held valid; agency policy, interpretation, and rotation allocation discussed

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MURPHY'S TOWING AND LYONS )

AUTO BODY, INC., )

)

Petitioners, )

)

vs. ) DOAH CASE NO. 87-4975RX

)

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, )

)

Respondent. )

_______________________________)

FINAL ORDER

This rule challenge was originally consolidated with two Administrative

Complaints (DOAH Case Nos. 87-3962 and 87-4011) filed by the Department of

Highway Safety and Motor Vehicles (DHSMV) against Murphy's Towing and Lyons Auto

Body, Inc., respectively. The disposition of the Administrative Complaints 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

ISSUES

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

utilizing qualified wrecker operators to remove wrecked, disabled, or abandoned

vehicles. The Department of Highway Safety and Motor Vehicles has 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.

This rule challenge attacks the "place of business" rule as promulgated in

Rule 15B-9.003(2), Florida Administrative Code and the non-rule policy

interpreting the "place of business" requirement of the duly promulgated rule,

on the basis that they are invalid exercises of delegated legislative authority

and are arbitrary, capricious, and violative of constitutional equal protection

with respect to these Petitioners, Murphy's and Lyons. With regard to the non-

rule policy, it is also attacked because it has not been adopted pursuant to

Section 120.54, Florida Statutes.

BACKGROUND AND PROCEDURE

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. The parties do not dispute that DHSMV's grant of authority stems from

Section 321.051, Florida Statutes (1987) which in its entirety provides as

follows:

321.051 A wrecker operator system for removal

of wrecked, disabled, or abandoned vehicles.--

The Division of Florida Highway Patrol of the

Department of Highway Safety and Motor Vehi-

cles is authorized to establish within areas

designated by the Patrol a system utilizing

qualified, reputable wrecker operators for

removal of wrecked or disabled vehicles from

an accident scene or for removal of abandoned

vehicles, in the event that the owner or

operator is incapacitated or unavailable or

leaves the procurement of wrecker service to

the officer at the scene. All reputable

wrecker operators shall be eligible for use in

the system provided their equipment and dri-

vers meet recognized safety qualifications and

mechanical standards set by rules of the

Division of Florida Highway Patrol for the

size of vehicle it is designed to handle.

2. Duly promulgated Rule 15B-9.003(2), Florida Administrative Code, which

has been challenged in this proceeding, provide:

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 opera-

tors in a particular zone, the Division

Director or his designee may designate

qualified out of zone wrecker operators to be

called in that zone.

Some other subparagraphs of Rule 15B-9.003 which were duly promulgated and which

have not been challenged in this proceeding are:

(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.

(10) Out-of-zone wrecker requests are

permitted in the event of an emergency or

the absence of a wrecker of proper

classification within the accident or

removal zone.

The "specific authority" listed in the Florida Administrative Code for this rule

is Section 321.051, Florida Statutes. The "law implemented" is Sections 321.051

and 321.05(1), Florida Statutes.

3. Duly promulgated and also unchallenged Rule 15B-9.004, Florida

Administrative Code provides in pertinent part:

(1) The wrecker operator shall respond to all

requests for service made through the Florida

Highway Patrol duty officer within a reasonable

time under the existing conditions and

circumstances. If response cannot be made

within a reasonable time, the wrecker operator

shall notify the Florida Highway Patrol duty

officer representative of the estimated time of

delay and reasons therefore and the duty

officer, if he determines that the delay is

unreasonable, may cancel the request for

service and use the services of another

participating wrecker operator.

* * *

(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.

The "specific authority" listed in the Florida Administrative Code for this rule

is Section 321.051, Florida Statutes. The "law implemented" is Section 321.051

and 321.05(1), Florida Statutes.

4. The non-rule policy complained of has been reduced to writing by the

Florida Highway Patrol (FHP) in the Administrative Complaints against these

Petitioners, and interprets the term "place of business" as provided by

challenged Rule 15B-9.003(2), Florida Administrative Code to mean:

A business establishment which meets the

following criteria:

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.

5. Petitioners 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").

6. Petitioners are each charged in an Administrative Complaint indicating

that the Respondent intends to remove Petitioners from the FHP wrecker rotation

system for 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 "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, bearing case numbers 87-02-FHP

and 87-04-FHP now, DOAH Case Nos. 87-3962 and 87-4011, respectively. Those

Administrative Complaints are the subject of the Section 120.57(1), Florida

Statutes hearing consolidated with this rule challenge.

7. 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 unchallenged

Rule 15B-9.003(3), Florida Administrative Code.

8. Presently, FHP maintains more than two hundred zones statewide. The

purpose of the zone system is to provide adequate service levels to the motoring

public. The wrecker's response time to a accident scene or to a motorist in

need is a primary consideration of FHP. Actual designation of a zone's

boundaries is left up to each respective local FHP troop commander, subject to

Division Review. See unchallenged Rule 15B-9.003(1), Florida Administrative

Code. Designations are within county borders and do not overlap county borders.

FHP has designated the size of a zone according to the types of roadways, the

number of businesses, and also the weather conditions to anticipate response

times within the zones.

9. 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.

10. 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.

11. 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.

12. 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).

13. However, by unwritten policy, troop commanders were responsible for

enforcing the location of a wrecker company's actual place of business and

storage lot within the zone in which he operated. For thirty-two years, Lt.

Col. Carmody, now Deputy Director of FHP, understood the unwritten policy to be

that a place of business was required for each zone in which an operator

operated, i.e., was listed for rotation. Palm Beach County FHP had represented

orally to Mr. Kauff for at least nineteen years that he must have a place of

business in each zone in which he operated and that "place of business" meant

the facility where the wreckers were dispatched, personnel were assigned, phone

calls were received, and vehicles were stored after towing. Murphy's and Lyons'

principals deny ever receiving such oral information from FHP prior to the

current litigation.

14. As Deputy Director of the Florida Highway Patrol, Lt. Col. John W.

Carmody is responsible for all field operations and for determining the policy

for the patrol. In addition, Lt. Col. Carmody supervises the troops and reviews

reports with regard to the wrecker rotation system that come to his attention.

In 1982, Lt. Col. Carmody was assigned responsibility by the Director of the

Florida Highway Patrol to promulgate rules for administering the FHP wrecker

rotation system. Among other rules, he was responsible for drafting Rule 15B-

9.003(2). In so doing, he participated in public hearings, researched other

Florida rules currently in force and criteria from other states. At formal

hearing, Lt. Col. Carmody demonstrated no analogies or similarities between the

challenged rule or the acknowledged non-rule policy and any other agency's or

jurisdiction's rules or statutes, but neither did Petitioners, who bear the

burden of proof, demonstrate any dissimilarity. The relationship of the

challenged rule and policy to other FHP rules also promulgated January 22, 1986,

is noted throughout this Order.

15. The unwritten place of business policy was carried forward into the

administrative rules promulgated January 22, 1986. The purpose of Rule 15B-

9.003(2) was to assure timely response by wrecker operators to telephone calls

from FHP in the interest of the safety and convenience of the public. As the

author of the rule, Lt. Col. Carmody was primarily concerned with providing for

a reasonable response time to the scene of an accident, reducing traffic

disruption at the accident scene, and allowing owners to recover their vehicles

or personal property within the zone without undue delay. In addition, it was

felt that requiring the business to be located within the zone it served would

facilitate the inspection of wreckers by FHP. In promulgating the rule, Lt.

Col. Carmody retained the place of business requirement due to the agency's

favorable experience with its use in implementing the zone system over thirty-

two years.

16. 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 over the phone when

occasional inquiries were made.

17. In February of 1986, Lt. Ernest Wessels, newly promoted to the post of

District Lieutenant of FHP Troop L, Palm Beach County, and newly in charge of

Troop L's wrecker rotation system, became aware that several wrecker services on

the local list had failed to letter their vehicles with zone address and phone

number and that some were operating in multiple zones. In March, 1986, he met

with those he thought were all the wreckers and advised them of the requirement

that signs be posted on their trucks; however it is not clear that Murphy's or

Lyons had any representative at that meeting or whether the sign requirement

discussed had to do with the wrecker rotation system or had to do with the

Section 715.07(2)(a )7, Florida Statutes, sign requirement for trucks towing from

private property (TR-173). Through the chain of command, Wessels requested by a

May 16, 1986 memorandum, a definition of "place of business" and instructions on

how to deal with specific presumed offenders against the new "place of business"

rule, 15B-9.003(2). One presumed offender indicated in that correspondence is

Murphy's. Contrary to Lt. Col. Carmody's assumption in 1986 and his testimony

at formal hearing, this correspondence does not indicate that any firm agency

policy was known throughout FHP at that time as to how the term "place of

business", as used in the new rule, was to be defined or interpreted.

Otherwise, Lt. Wessels would not have had to ask for clarification. Carmody

never saw Wessels' correspondence but sent oral instructions on how to deal with

one business about which Wessels had inquired. That business was not owned by

either Lyons or Murphy's. At that time, no specific overall criteria were set

forth by Lt. Col. Carmody either orally or in writing with regard to defining

"place of business" as used in the rule.

18. 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."

19. 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, are set out in

Finding of Fact 4 supra. The non-rule policy in Carmody's memorandum, which for

the first time interprets, in writing, the term, "place of business" as used in

the rule, virtually adopts the criteria suggested in Mr. Kauff's letter, with

only two exceptions. Some of Kauff's suggestions were similar also to Lt.

Wessels' earlier suggestions, specifically, name and address on a building, a

building manned during normal business hours, and not including lease storage.

20. Lt. Col. Carmody did not disseminate a similar memorandum 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 case and its companion Administrative Complaint cases. 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

with these criteria. Violations shall be

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.

21. No studies or any other form of field research was conducted as to the

necessity or propriety of the non-rule policy. Prior to Lt. Col. Carmody's

response to Mr. Kauff's letter, no written document existed requiring the six

"place of business" criteria of the non-rule policy. The non-rule policy is

admittedly not related to reputability, mechanical standards, or safety

qualifications set by the FHP for the size of the vehicle the wrecker is

intended to handle. However, the agency's primary purpose behind the place of

business non-rule policy, as is its purpose for the published "place of

business" rule 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 Complaint proceedings demonstrates this

concern is valid. (See Finding of Fact 26) 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 calls 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.

22. From FHP's perspective, a reasonable response time is a public safety

qualification, although it is admittedly not a qualification geared to the size

of the vehicles to be towed.

23. Petitioners assert that Rule 15B-9.004(1), providing that an operator

will lose a call if a reasonable response time is not evident, is sufficient to

ensure reasonable response by wrecker operators and renders both the challenged

rule and non-rule policy redundant and unnecessary because Rule 15B-9.007(1)

provides for removal from the wrecker rotation list for failure to comply with

any other rule. FHP maintains that although FHP is encountering only sporadic

problems in Palm Beach County with wrecker response time under the current

operation of Rule 15B-9.003(2), without a place of business requirement,

wreckers would be encouraged to race from one zone to another to avoid violating

Rule 15B-9.004, and the public would thereby be endangered by traffic hazards

created by wreckers hurriedly responding to a call. Wrecker services are

reluctant to turn down a rotation call. Murphy's, for instance, charges up to

twice as much for an FHP list tow as for other tows. If a wrecker does not

respond to a call from FHP, substantial revenues may be lost. Lt. Col. Carmody

and Lt. Wessels opined that absence of an enforceable "place of business" rule

would largely obliterate the statutory areas/zones concept altogether. See

Section 321.051, Florida Statutes, supra.

24. Eliminating the place of business requirement would cause significant

operational problems for FHP. Timely response by wreckers could not be

effectively enforced on the authority of Rule 15B-9.004 alone. If a wrecker

were sent from one zone into another and the wrecker were delayed, an excuse

given to the Patrol, such as weather or traffic congestion could never be

verified. Eliminating the place of business requirement would allow wreckers to

cross zones so that timely response would have to be judged on a case by case

basis. In view of the difficulty of judging the reasonableness of each response

by a wrecker and problems incurred in locating the business for the purpose of

inspecting the wreckers or releasing the vehicle or personal property to the

motorist, eliminating the place of business requirement would create what Lt.

Col. Carmody described as "an administrative nightmare for FHP." It is found

that this is a fair assessment of the situation, despite Lt. Wessels' testimony

that he knew of no specific facts showing that the public has yet been adversely

affected in response time or retrieval of vehicles by the method in which

Murphy's and Lyons' operate their businesses.

25. 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, whom Kauff had identified as

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

by Lt. Col. Carmody.

26. 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 being unable to locate some

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

comply with the criteria and recommended their removal from the appropriate

rotation list. Petitioners Murphy's Towing and Lyons Auto Body, Inc. were

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

27. 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

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

28. 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 4 supra., not as it had evolved as of

the January 8, 1988 statewide memorandum described in Finding of Fact 20 supra.

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.

29. 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 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 27.

30. 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 in removal of Kauff's from the rotation list in Zone 4, Palm Beach

County.

31. 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. (See the Conclusions of Law supra.) He opined that a wrecker

operator 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.

32. 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

Petitioners in this cause, so as to invalidate either the rule or the non-rule

policy upon that ground. 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. Petitioners 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.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause pursuant to Section 120.56, Florida

Statutes.

34. Petitioners have standing to bring this rule challenge.

35. Their Petition challenged a duly promulgated rule, Rule 15B-9.003(2),

Florida Administrative Code, which provides:

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.

Petitioners challenged this rule as an invalid exercise of delegated legislative

authority. They also challenged the rule as arbitrarily and capriciously

applied.

36. The Petition further challenges an unpromulgated rule or policy of the

DHSMV interpreting the place of business requirement of Rule 15B-9.003(2). This

policy consists of six criteria to constitute a place of business, as follows:

1. There must be a sign on the building

that identifies it to the general public as

a wrecker establishment.

2. There must be office space.

3. The office must have personnel on duty

at least from 9 a.m. to 4 p.m. Monday

through Friday.

4. There must be a phone at the place of

business.

5. Tow trucks must be stationed at the

place of business.

6. Tow trucks must have the zone address

and phone numbers on them.

37. Petitioners also challenge this policy as an unpromulgated rule which

constitutes an invalid exercise of delegated legislative authority. Petitioners

contend that the policy is applied in an arbitrary and capricious manner.

38. Petitioners' challenge is restricted to the foregoing rule and six

policy criteria as items specifically identified within the four corners of

their Petition, which was not amended. Any challenge to rules 15B-9.003(3)

[call allocation system], 15B-9.003(8) [one day and night phone number], 15B-

9.003(9) [wreckers on call 24 hours a day], and 15B-9.004(4) [vehicles to be

towed within the zone] is hereby rejected as not having been raised in the

pleadings or by proper amendment. See, Rule 22I-6.004, Florida Administrative

Code.

39. With regard to the constitutional issues raised by the Petitioners,

these were not argued in the post hearing proposals and it is noted that 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).

40. For the reasons set forth in the foregoing findings of fact,

Petitioners are not entitled to attorney's fees, costs, and sanctions associated

with an improper denial of a Request for Admission.

41. The statute on which DHSMV bases its authority for the challenged rule

and non-rule policy criteria is Section 321.051, Florida Statutes, which

provides:

The Division of Florida Highway Patrol of

the Department of Highway Safety and Motor

Vehicles is authorized to establish within

areas designated by the patrol a system

utilizing qualified, reputable, wrecker

operators for removal of wrecker or

disabled vehicles from an accident scene or

for removal of abandoned vehicles, in the

event or operator is incapacitated or

unavailable or leaves the procurement of

wrecker service to the officer at the

scene. All reputable wrecker operators

shall be eligible for use in the system

provided their equipment and drivers meet

recognized safety qualifications and

mechanical standards set by rules of the

Division of Florida Highway Patrol for the

size of vehicle it is designed to handle.

[Emphasis Supplied.]

42. This statute was enacted by Chapter 80-402, Laws of Florida, with an

effective date of July 10, 1980. The Title to this law states as follows:

An act relating to maintenance of an

approved wrecker system of call

allocations: creating section 321.051,

Florida Statutes; providing authority to

the Florida Highway Patrol for maintenance

of such lists for call to accident scenes

or removal of abandoned vehicles when owner

or operator incapacitated, unavailable or

leaves the decision to officers; providing

guidelines for entry and retention on the

system of call allocation; providing an

effective date.

While the title to an act cannot be relied upon to add to or expand the

operation of the act, it still may give valuable clues as to legislative intent

and how the statute should be construed. See Parker v. State, 406 So.2d 1089

(Fla. 1982), Cook v. Blazer Financial Services, Inc., 332 So.2d 677 (Fla. 1st

DCA 1976), State v. Yeats, 77 So. 202 (Fla. 1917). Determining legislative

intent is of utmost importance in these cases and statutory construction is more

than diagramming sentences.

43. Respondent relies on Chapter 321's general delegation to the Patrol to

implement a call allocation system within areas (geographic boundaries by zones)

as grounds to uphold the rule and non-rule policy. DHSMV-FHP also relies upon

the language within Section 321.051, Florida Statutes, authorizing the FHP to

"establish within areas designated by the Patrol a system ..." and Section

321.14 which provides as follows:

Construction.--This chapter shall be

liberally construed to the end that the

greatest force and effect may be given to

its provisions for the promotion of public

safety.

Therefore, DHSMV-FHP further urges that Section 321.051 should be liberally

construed to provide for the safety of the motoring public; that is, if the

statute is capable of different interpretations, the construction which

reasonably promotes public safety should be utilized.

44. In General Telephone of Florida v. Florida Public Service Commission,

446 So.2d 1063 (Fla. 1984), the Supreme Court set forth the standard for review

in rule challenge cases:

We adopt as the proper standard of review

one set forth by the First District Court

of Appeal upon review of similar rule-

making:

Where the empowering provision of a statute

states simply that an agency may 'make such

rules and regulations as may be necessary

to carry out the provisions of this act,'

the validity of the regulations promulgated

thereunder will be sustained as long as

they are reasonably related to the purposes

of the enabling legislation, and are not

arbitrary or capricious. Agrico Chemical

Comany v. State, Department of

Environmental Regulation, 365 So.2d 759

(Fla. 1st DCA 1978); cert. den. 376 So.2d

74 (Fla. 1979); Florida Beverage Corp. v.

Wynne, 306 So.2d 200 (Fla. 1st DCA 1975).

45. Additional standards applicable to the review of this case are set

forth in Department of Professional Regulation, Board of Medical Examiners v.

Durrani, 455 So.2d 515 (Fla. 1st DCA 1984) as follows:

The well recognized general is that

agencies are to be accorded wide discretion

in the exercise of their lawful rulemaking

authority, clearly conferred or fairly

implied and consistent with the agencies'

general statutory duties. Florida

Commission on Human Relations v. Human

Development Center, 413 So.2d 1251 (Fla.

1st DCA 1982). An agencies construction of

the statutory it administers is entitled to

great weight and is not to be overturned

unless clearly erroneous. [Emphasis by

Court]. Pan American World Airways, Inc.

v. Florida Public Service Commission, 427

So.2d 716 (Fla. 1983); Barker v. Board of

Medical Examiners, 428 So.2d 720 (Fla. 1st

DCA 1983). Where, as here, the agency's

interpretation of a statute has been

promulgated in rulemaking proceedings, the

validity of such rule must be upheld if it

is reasonably related to the purposes of

the legislation interpreted and it is not

arbitrary and capricious. The burden is

upon Petitioner in a rule challenge to show

by a preponderance of the evidence that the

rule or its requirements are arbitrary and

capricious. Agrico Chemical Company v.

State, Department of Environmental

Regulation, 365 So.2d 759 (Fla. 1st DCA

1978); Florida Beverage Corp. v. Wynne, 306

So.2d 200 Fla. 1st DCA 1975). Moreover,

the agency's interpretation of a statute

need not be the sole possible

interpretation or even the most desirable

one; it need only be within the range of

possible interpretations. Department of

Health and Rehabilitative Services v.

Wright, 439 So.2d 937 (Fla. 1st DCA 1983)

( Ervin, C.J. dissenting); Department of

Administration v. Nelson, 424 So.2d 852

(Fla. 1st DCA 1982); Department of Health

and Rehabilitative Services v. Framat

Realty, Inc., 407 So.2d 238 (Fla. 1st DCA

1981).

46. What constitutes arbitrary or capricious action is explained in Agrico

Chemical Company v. State, Department of Environmental Regulation, 365 So.2d 759

(Fla. 1st DCA 1978).

A capricious action is one which is taken

without thought or reason or irrationally.

An arbitrary decision is one not supported

by facts or logic, or despotic.

Administrative discretion must be reasoned

and based upon competent substantial

evidence. Competent substantial evidence

has been described as such evidence as a

reasonable person would accept as adequate

to support a conclusion.

The requirement that a challenger has the

burden of demonstrating agency action to be

arbitrary or capricious or an abuse of

administrative discretion is a stringent

one indeed. However, the degree of such

required proof is by preponderance of the

evidence.

47. As to Rule 15B-9.003(2), Florida Administrative Code, which was

adopted pursuant to Section 120.54, Florida Statutes, and which has been in

effect since January, 1986, without legislative correction, the presumption of

correctness of an agency rule is even stronger. Department of Administration v.

Nelson, 424 So.2d 852 (Fla. 1st DCA 1982). Rule 15B-9.003(2) represents a

regulation reasonably related to the purpose of establishing a call allocation

system within areas (zones) designated by the Patrol. Section 321.051, Florida

Statutes, must be read in pari materia with Section 321.14, Florida Statutes, as

a general delegation to the Department to establish rules relating to the

wrecker allocation system that are designed to promote public safety.

48. The record in this proceeding supports the reasonableness of limiting

wrecker participation in the Patrol's rotation system to all qualified operators

who are physically located within the designated zone. The alternative could

endanger motorists and foster undue hardship and confusion to the public and the

Patrol. It would effectively eliminate any meaningful zone requirements

contemplated by the statute.

49. Petitioners solely concentrate upon the second sentence of Section

321.051 and maintain that statutory language should be read so as to impose only

two eligibility qualifications upon wrecker operators: (1) reputability and (2)

equipment and drivers which meet recognized safety qualifications and mechanical

standards ... for the size of vehicle it is designed to handle. 1/ Petitioners

then propose that maintaining a "place of business" within each zone operated in

has no relationship to either qualification.

50. Respondent has shown safety considerations, although not necessarily

mechanical ones, which went into formulation of the rule. Reading Sections

321.14 and 321.051, Florida Statutes, in pari materia provides for an overall

system whose establishment, maintenance, and safety must be of primary concern.

It is the agency's responsibility, indeed its duty, to promulgate rules to

implement that system. The title of the implementing legislation is consistent

with this construction.

51. Petitioner's objection underlies their preference for a different call

allocation system involving roving trucks with radio dispatched systems and no

zone restrictions. The agency rule need only be within the range of reasonable

interpretation to be sustained. Petitioners have therefore failed their burden

of proof in attempting to show that the promulgated rule 15B-9.003(2) is

arbitrary and capricious.

52. The six "place of business" definitive criteria articulated by Lt.

Carmody may be characterized as incipient agency policy. The courts have

recognized the validity of such policy as a precursor to rule. The incipient

policy may be applied in Section 120.57 hearings, "provided the agency

explicates, supports, and defends such policy with competent substantial

evidence on the record in such proceedings." Gulf Coast Home Health Service of

Florida, Inc. v. State Department of Health and Rehabilitative Services, 513

So.2d 704 (Fla. 1st DCA 1987).

53. Respondent suggests that Department of Highway Safety and Motor

Vehicles v. Florida Police Benevolent Association, 400 So.2d 1302,1303 (Fla. 1st

DCA 1981) controls. Therein, the courts declined to require Florida Highway

Patrol general orders to be adopted as rules, where they were applied pursuant

to a published Florida Administrative Code rule against insubordination. That

case is not fully on point with the present one and is not controlling. There

is no lawful way the six criteria interpreting "place of business" and resulting

in administrative complaints against Murphy's and Lyons, among others, can be

considered to be an "internal management memorandum."

54. It has been held that an agency statement is a "rule" if it purports

in and of itself to create certain rights and adversely affects others or serves

by its own effect to create rights, to require compliance or otherwise to have

the direct and consistent effect of law. Balsam v. Department of Health and

Rehabilitative Services, 452 So.2d 976 (Fla. 1st DCA 1984); State, Department of

Administration v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1978). The challenged

policy is directly and consistently applicable to all Florida rotation listees

and its immediate effect is not limited because Palm Beach County is the only

county in which alleged violators were detected. The instant situation is

distinguishable from the Department of Commerce v. Mathews Corp., 358 So.2d 256

(Fla. 1st DCA 1978). Therein, the court held a wage rate determination applied

to one entity/party in one geographic location, for one construction project was

not a rule because it was not of general applicability and did not have the

consistent effect of law. Here, DHSMV applied its policy to all known offenders

after investigation.

55. It has been proved that DHSMV has a policy which it has attempted to

consistently apply once it became aware of violations thereof. That policy, as

described in Findings of Fact 4 and 20 supra., is a "rule" based upon the plain

reading of the definition in Section 120.52(16), Florida Statutes.

'Rule' means each agency's statement of

general applicability that implements,

interprets, or prescribes law or

policy...

56. The policy/rule is not inconsistent with Chapter 321 or duly

promulgated Rule 15B-9.003(2). It has not, however, been duly promulgated.

57. Nonetheless, Department of Highway Safety and Motor Vehicles--Florida

Highway Patrol's admitted failure to promulgate its policy as a rule is not

fatal to FHP's application of that policy on a case-by-case basis. The

opportunity for exposure and challenge to the policy is available in Section

120.57(1), Florida Statutes proceedings, in lieu of the Section 120.54, Florida

Statutes rulemaking process.

58. The appellate courts, in construing Section 120.56, Florida Statutes

have evolved from the early cases invalidating policies unpromulgated as rules,

but within the virtually limitless definition of "rule" in Section 120.52(16),

Florida Statutes. Agencies are given a choice of properly promulgating policies

as rules and applying them with the force and effect of law, or fully

explicating those policies and exposing them to challenge every time they are

applied in an adjudicatory procedure. McDonald v. Department of Banking and

Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Amos v. Department of Health and

Rehabilitative Services, 444 So.2d 43 (Fla. 1st DCA 1983); Gulf Coast Home

Health Services of Florida, Inc. v. State of Florida, Department of Health and

Rehabilitative Services, 513 So.2d 704 (Fla. 1st DCA 1987). In Amos page 47

supra., the agency's policy was invalidated, not solely because it had not been

promulgated as a rule, but because the agency also failed to affirmatively show

the reasonableness and factual accuracy of the policy.

59. Whether the policy is "incipient" or evolving, is not material to the

application of this principle. The policies have been invalidated as rules.

State Department of Administration v. Harvey, supra. This means of course, they

cannot be applied as rules, but must be defended on a case-by-case basis each

time the occasion arises in a Section 120.57(1), Florida Statutes proceeding.

60. This is precisely what is transpiring in DOAH Case Nos. 87-3962 and

87-4011, the related Section 120.57(1), Florida Statutes cases, which are

companion to the instant one. Based upon the foregoing, it is hereby ORDERED:

1. Petitioners have standing to bring this action.

2. Rule 15B-9.003(2) is a valid exercise of delegated legislative

authority pursuant to Sections 321.051 and 321.14, Florida Statutes.

3. DHSMV-FHP's policy establishing six criteria by which the term "place

of business" as used in Rule 15B-9.003(2) Florida Administrative Code is to be

defined is invalid as a rule for failure to promulgate pursuant to Section

120.54, Florida Statutes.

4. The policy is not invalid as contrary to Chapter 321, Florida Statutes

or other statutory provisions raised in this proceeding, and is subject to be

litigated on a case-by-case basis.

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.

ENDNOTE

1/ Petitioners' construction is in tune with the construction employed for the

same statute in AGO 85-60, which advised DHSMV-FHP that their prior guidelines

might not, among other matters, prescribe storage requirements for towed

vehicles. That opinion was written in the context of specific questions posed

by the Agency and did not address the system of rotation lists employed by FHP.

While instructional, it is not binding in this forum.

APPENDIX TO FINAL ORDER, CASE NO. 87-4975RX

The following constitute rulings pursuant to section 120.59(1), Florida

Statutes, upon the respective proposed findings of fact (PFOF) of the parties

herein.

Petitioners' PFOF

1-2 Accepted in FOF 18-20, 31.

3 Rejected for the reasons and upon the findings set forth in FOF 27, 30-

32.

4 Opening statements cannot form the basis of a FOF. The remainder of the

proposal is accepted in FOF 15, 21, 23.

5-7 Except as subordinate and unnecessary; see FOF 23-24, 28, 29. The

testimony was that although no chronic response time exists, normal and sporadic

problems exist in the various zones of Palm Beach County.

8 Rejected in part and accepted in part in FOF 21 and 26. The testimony

recited applied to main offices, not satellite offices.

9 Accepted in FOF 23.

10 Rejected in FOF 15-16 and 21; Lt. Col. Carmody assumed the six criteria

were always part of the rule.

11 Accepted in FOF 15.

12 Accepted in FOF 12-17.

13-22 Accepted in FOF 5-6, 10-11, 27-29.

23 Accepted in FOF 12.

24 Accepted in FOF 20.

25 Accepted in FOF 5-6, 10-11, 27-29.

26 Accepted but subordinate and unnecessary.

27 Accepted in FOF 31.

28 Accepted in FOF 25.

29 Accented as modified to conform to the record as a whole in FOF 29.

30-34 Except as subordinate or unnecessary, accepted in FOF 31.

Respondent's PFOF

1 Accepted in FOF 7.

2 Accepted in FOF 8.

3 Accepted in FOF 9.

4 Accepted in FOF 10.

5 Accepted in FOF 11.

6 Accepted in FOF 12.

7 Accepted as modified to conform with the greater weight of the credible

competent record evidence as a whole in FOF 13.

8 Accepted as modified to conform with the greater weight of the credible

competent record evidence as a whole in FOF 14.

9 Accepted in FOF 15.

10 Accepted in FOF 21-24.

11 Accepted in FOF 10, 23-24.

12 Accepted in FOF 24.

13 Accepted in FOF 16.

14-15, 18 Except as subordinate and unnecessary, covered in FOF 17.

16 Rejected as unnecessary.

17 Accepted in FOF 20, 32.

19-20 Accepted in FOF 18.

21 Accepted in FOF 19.

22 Accepted as modified to conform to the record as a whole in FOF 19-21.

23 Accepted in FOF 31.

24 Accepted in FOF 20.

25 Accepted in FOF 25.

26-27 Accepted in FOF 26-27, 29

28 Accepted in FOF 30.

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

Liz Cloud, Chief

Bureau of Administrative Code

The Capitol - 1802

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE

GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR

WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED.