95-001095RX Mobile Auto Repair Shop vs. Department Of Agriculture And Consumer Services Status: Closed DOAH Final Order on Thursday, June 29, 1995.

Summary: Statute implemented is clear and unambiguous, legislative history not considered, rule takes away exemption priovided by Statutes, rule is invalid

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOBILE AUTO REPAIR SHOP, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1095RX

)

DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

_________________________________)

FINAL ORDER

Pursuant to written notice, a formal hearing was held in this case on April

6, 1995, by video teleconference in West Palm Beach, Florida, before Errol H.

Powell, a duly designated Hearing Officer of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Theron C. Phinney, Owner, pro se

Mobile Auto Repair Shop

Post Office Box 12813

Lake Park, Florida 33403

For Respondent: Robert G. Worley, Esquire

Department of Agriculture and

Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

The issue for determination at formal hearing was whether Rule 5J-

12.001(2), Florida Administrative Code, constitutes an invalid exercise of

delegated legislative authority.

PRELIMINARY STATEMENT

This is a rule challenge brought under the provisions of Section 120.56,

Florida Statutes, challenging the validity of Rule 5J-12.001(2), Florida

Administrative Code, which defines "established place of business."

At the hearing, Petitioner's owner testified and entered two exhibits into

evidence. Respondent presented the testimony of two witnesses and entered one

composite exhibit into evidence.

A transcript of the formal hearing was ordered. At the request of the

parties, the time for filing post-hearing submissions was set for more than ten

days following the filing of the transcript. The parties submitted proposed

findings of fact which have been addressed in the appendix to this final order.

FINDINGS OF FACT

1. Theron C. Phinney is the sole owner and operator of Mobile Auto Repair

Shop, located in Lake Park, Palm Beach County, Florida. He is engaged in the

repairing of motor vehicles and has been in the auto repair business for over 35

years.

2. Mr. Phinney's auto repair business is mobile. All of his equipment and

tools for repairing vehicles are located in his truck. Mr. Phinney repairs

vehicles wherever they are located, i.e., he goes to where the vehicles are

located. No repairs are performed at Mr. Phinney's residence.

3. Mr. Phinney has no employees.

4. Mr. Phinney has been issued an occupational license by Palm Beach

County at a cost of $25.00. The license identifies his residence as the

location for his business. Even though Mr. Phinney does not perform any vehicle

repairs at his residence, the County required him to provide his residential

address as the location of his business. The County renews his license yearly

with the residential address. 1/

5. Repairs by mobile motor vehicle repair shops are performed wherever the

vehicle needing repair is located. Equipment and tools used to perform the

repairs are located in the vehicle owned by the mobile motor vehicle repair

shop.

6. The Department of Agriculture and Consumer Services (Department) is

charged with administering the Florida Motor Vehicle Repair Act, Sections

559.901-559.9221, Florida Statutes. The Act requires motor vehicle repair shops

to register with the Department and pay a fee and provides certain exemptions.

Section 559.904, Florida Statutes.

7. Section 559.904(9), Florida Statutes, provides:

(9) No annual registration application or fee

is required for an individual with no employees

and no established place of business.

8. Section 559.903(8), Florida Statutes, defines "place of business" and

provides:

(8) "Place of business" means a physical place

where the business of motor vehicle repair is

conducted.

9. The Department's Rule 5J-12.001(2), Florida Administrative Code,

provides:

(2) "Established place of business" means that

physical location noted on the occupational

license issued to the motor vehicle repair shop

pursuant to Chapter 205, Florida Statutes. If

the county or municipality has adopted no local

occupational license requirement pursuant to Chapter

205, Florida Statutes, the term means that physical

location where motor vehicle repairs are performed,

or records, equipment, or tools used for the conduct

of the business of motor vehicle repair are housed

or stored. The term includes any vehicle constituting

a mobile repair shop.

The Rule was adopted on January 18, 1995.

10. Rule 5J-12.001(2) implements Section 559.904(9). The Rule also

implements Section 559.903(5) and (7), Florida Statutes, which define "minor

repair service" and "motor vehicle repair shop," respectively. There is no

dispute that mobile motor vehicle repair shops are included in the definition of

motor vehicle repair shops.

11. The Department developed the challenged Rule over a period of several

months. Numerous public meetings were conducted, particularly with the motor

vehicle repair industry, throughout the State of Florida.

12. From the public meetings conducted by the Department, it was evident,

among other things, that there was no clear understanding of the meaning of the

term "established place of business" in Section 559.904(9). Consequently, the

Department was convinced that clarification of the term was needed.

13. The Motor Vehicle Advisory Council (MVAC) reviewed and advised the

Department on the challenged Rule and gave the Rule its (MVAC) approval. The

MVAC is a statutorily created advisory council, composed of members from the

motor vehicle repair industry.

14. The challenged Rule includes all mobile motor vehicle repair shops

within the class of businesses required to be registered with the Department

pursuant to Chapter 559, Florida Statutes. The Department contends that this

inclusion is necessary because, since the purpose of Chapter 559 is to regulate

the auto repair business, the mobile motor vehicle repair shops are conducting

the business sought to be regulated in that the mobile repair shops are licensed

by county and municipal authorities and are performing significant repairs for

compensation.

15. There are approximately 560 mobile motor vehicle repair shops

registered with the Department.

16. Standing is not at issue in this proceeding.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the

subject matter of this proceeding and the parties thereto, pursuant to Section

120.56, Florida Statutes.

18. Mr. Phinney has standing to challenge the validity of the promulgated

rule. As challenger, the burden is upon Mr. Phinney to demonstrate by a

preponderance of the evidence that the rule is an invalid exercise of delegated

legislative authority. Humana, Inc. v. Department of Health and Rehabilitative

Services, 469 So.2d 889 (Fla. 1st DCA 1985); and Agrico Chemical Co. v.

Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert.

den. 376 So.2d 74 (Fla. 1979).

19. Section 559.903(8), Florida Statutes, provides:

(8) "Place of business" means a physical place

where the business of motor vehicle repair is

conducted.

20. Section 559.904(9), Florida Statutes, provides:

(9) No annual registration application or fee

is required for an individual with no employees

and no established place of business.

21. Rule 5J-12.001(2), Florida Administrative Code, provides:

(2) "Established place of business" means that

physical location noted on the occupational

license issued to the motor vehicle repair shop

pursuant to Chapter 205, Florida Statutes. If

the county or municipality has adopted no local

occupational license requirement pursuant to

Chapter 205, Florida Statutes, the term means

that physical location where motor vehicle repairs

are performed, or records, equipment, or tools used

for the conduct of the business of motor vehicle

repair are housed or stored. The term includes

any vehicle constituting a mobile repair shop.

22. The Department enacted the challenged Rule through its general

rulemaking authority "to enact, amend, and repeal administrative rules as

necessary." Section 570.07(23), Florida Statutes.

23. Mr. Phinney contends that if a mobile motor vehicle repair shop

satisfies the two requirements in Section 559.904(9), the mobile repair shop is

exempt from registration.

24. To the contrary, the Department contends that no mobile motor vehicle

repair shops are exempt from registration since the Florida Motor Vehicle Repair

Act 2/ is intended to regulate all motor vehicle repair shops, including

mobile repair shops.

25. Subsection 120.52(8), Florida Statutes, provides in pertinent part

that a rule is an "invalid exercise of delegated legislative authority" if:

(a) The agency has materially failed to follow

the applicable rulemaking procedures set forth

in s. 120.54;

(b) The agency has exceeded its grant of rule-

making authority, citation to which is required

by s. 120.54(7);

(c) The rule enlarges, modifies, or contravenes

the specific provisions of law implemented, citation

to which is required by s. 120.54(7);

(d) The rule is vague, fails to establish adequate

standards for agency decisions, or vests unbridled

discretion in the agency; or

(e) The rule is arbitrary or capricious.

26. The Florida Supreme Court described the standard for review in rule

challenge cases in General Telephone Company of Florida v. Florida Public

Service Commission, 446 So.2d 1063, 1067 (Fla. 1984) as follows:

We adopt as the proper standard of review one set

forth by the First District Court of Appeal upon

review of similar rulemaking: 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 provision of this act,"

the validity of the regulations promulgated there-

under will be sustained as long as they are reasonably

related to the purposes of the enabling legislation,

and are not arbitrary and capricious. Agrico Chemical

Co. 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).

27. Additional standards applicable to the review of a rule challenge

proceeding are articulated in Department of Professional Regulation, Board of

Medical Examiners v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984) as follows:

The well recognized general rule 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

agency's construction of the statute it administers

is entitled to great weight and is not to be over-

turned unless clearly erroneous. 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 rules must be upheld if it is

reasonably related to the purposes of the legis-

lation 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 Co. v. State, Dept. 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).

28. However, where the legislative intent as evidenced by a statute is

clear and unambiguous, there is no need for any construction or interpretation,

and the forum need only give effect to the plain meaning of its terms. Van Pelt

v. Hilliard, 75 Fla. 792, 78 So. 693 (1918).

29. The fundamental rules governing construction applicable to the instant

case were aptly set forth in Florida State Racing Commission v. McLaughlin, 102

So.2d 574, 575 (Fla. 1958), as follows:

It is elementary that the function of the Court

is to ascertain and give effect to the legislative

intent in enacting a statute.

In applying this principle certain rules have been

adopted to guide the process of judicial thinking.

The first of these is that the Legislature is

conclusively presumed to have a working knowledge

of the English language and when a statute has been

drafted in such a manner as to clearly convey a

specific meaning the only proper function of the

Court is to effectuate this legislative intent.

This rule is subject to the qualification that if

a part of a statute appears to have a clear meaning

if considered alone but when given that meaning is

inconsistent with other parts of the same statute

or others in pari materia, the Court will examine

the entire act and those in pari materia in order

to ascertain the overall legislative intent.

When construing a particular part of a statute it

is only when the language being construed in and

of itself is of doubtful meaning or doubt as to

its meaning is engendered by apparent inconsistency

with other parts of the same or closely related

statute that any matter extrinsic the statute may

be considered by the Court in arriving at the

meaning of the language employed by the Legislature.

30. Section 559.903(8), Florida Statutes, is clear and unambiguous. If a

person in the business of motor vehicle repair, performs the repair at a

physical location, that physical location is considered the place of business.

31. Moreover, Section 559.904(9), Florida Statutes, is clear and

unambiguous. It provides an exemption from registration for motor vehicle

repair shops which meet two requirements: (1) the repair shop must not have

any employees; and (2) the repair shop must have no established place of

business. That is, if the motor vehicle repair shop has no employees and no

fixed or consistent physical location for repairing motor vehicles, the motor

vehicle repair shop is exempt from registration. The effect of Rule 5J-

12.001(2) is to take away the statutory exemption provided by the Legislature to

motor vehicle repair shops which satisfy these two requirements.

32. The Department's interpretation as reflected in the challenged Rule is

clearly erroneous. The Rule is not reasonably related to the purposes of the

statute interpreted and is arbitrary and capricious.

33. There is no need to consider the legislative history and other

extraneous matters argued by the Department. Such matters are proper for

consideration only if the statute being construed is of doubtful meaning.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the petition to declare Rule 5J-12.001(2), Florida

Administrative Code, invalid is GRANTED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of

June 1995.

___________________________________

ERROL H. POWELL

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of June 1995

ENDNOTES

1/ The residential address listed is a former residence.

2/ Sections 559.901-559.9221, F.S.

APPENDIX

The following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

(Mr. Phinney's recommended order contains no numbered paragraphs but

consists of six paragraphs.)

The six paragraphs are rejected as being argument, or conclusions of law.

Respondent's Proposed Findings of Fact.

1. Partially accepted in finding of fact 6.

2. Partially accepted in finding of fact 7.

3. Partially accepted in finding of fact 9.

4. Partially accepted in findings of fact 1 and 4.

5. Partially accepted in finding of fact 15.

6. Partially accepted in finding of fact 11.

7. Partially accepted in finding of fact 12.

8. Partially accepted in finding of fact 13.

9. Partially accepted in finding of fact 14.

10. Partially accepted in findings of fact 11-12.

11. Rejected as unnecessary, or subordinate.

12. Partially accepted in findings of fact 11-13.

NOTE: Where a proposed finding has been partially accepted, the remainder has

been rejected as being irrelevant, unnecessary, cumulative, subordinate, not

supported by the more credible evidence, argument, or conclusion of law.

COPIES FURNISHED:

Theron C. Phinney

Mobile Auto Repair Shop

Post Office Box 12813

Lake Park, Florida 33403

Robert G. Worley, Esquire

Department of Agriculture and

Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32399-0800

Honorable Bob Crawford

Commissioner of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel

Department of Agriculture and

Consumer Services

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Brenda D. Hyatt, Chief

Department of Agriculture

Bureau of License and Bond

Mayo Building, Room 508

Tallahassee, Florida 32399-0800

Liz Cloud, Chief

Bureau of Administrative Code

The Elliot Building

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

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.

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

DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA, DEPARTMENT NOT FINAL UNTIL TIME EXPIRES TO

OF AGRICULTURE AND CONSUMER FILE MOTION FOR REHEARING AND

SERVICES, DISPOSITION THEREOF IF FILED.

Appellant, CASE NO. 95-2583

DOAH CASE NO. 95-1095RX

vs.

MOBILE AUTO REPAIR SHOP,

Appellee.

______________________________/

Opinion filed September 10, 1996.

An Appeal from order of the Division of Administrative Hearings.

Joseph R. Englander, Senior Attorney, Department of Agriculture and Consumer

Services, Tallahassee, for Appellant.

No appearance for Appellee.

PER CURIAM

AFFIRMED.

ERVIN, KAHN, and BENTON, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable Errol H. Powell, Hearing Officer

Division of Administrative Hearings

WHEREAS, in that certain cause filed in this Court styled:

MOBILE AUTO REPAIR SHOP

vs. Case No. 95-2583

Your Case No. 95-1095RX

DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES

The attached opinion was rendered on September 10, 1996.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said

opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable Edward T. Barfield

Chief Judge of the District Court of Appeal of Florida, First District and

the Seal of said court at Tallahassee, the Capitol, on this 26th day of

September, 1996.

___________________________________________

(seal) Jon S. Wheeler

Clerk, District Court of Appeal of Florida,

First District