01-002829 Leisure Tyme Rv And Karl A. Nessamar vs. Department Of Transportation Status: Closed Recommended Order on Monday, January 28, 2002.

Summary: Petitioners showed that agency interpretation of statutory authority to effect that motor home was a "commercial vehicle" was erroneous as matter of fact and law.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEISURE TYME RV AND KARL A. )

NESSAMAR, )

)

Petitioners, )

)

vs. ) Case No. 01 - 2829

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal

proceeding before P. Michael Ruff, Administrative Law Judge of

the Division of Administrative Hearings, on September 26, 2001,

in Pensacola, Florida. The appearances were as follows:

APPEARANCES

For Petitioners: Julius F. Parker, III, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Suite 200

Post Office Box 10095

Tallahassee, Florida 32301

For Respondent: Scott A. Matth ews, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether a recreational vehicle with a gross vehicle weight in

excess of 10,000 pounds meets the definition of "commercial

motor vehicle" under relevant Florida law when driven by an

employee of a licensed recreational vehicle dealer, rather than

by the ultimate consumer.

PRELIMINARY STATEME NT

This cause arose upon the filing of a Petition on

February 6, 2001, by the above - named Petitioners to contest the

issuance of a "driver vehicle inspection report" (violation

citation) issued to the Petitioners by an officer of the

Respondent, Departme nt of Transportation (Department)(Agency).

Sometime after July 6, 2001, the dispute was referred to the

Division of Administrative Hearings and ultimately to the

undersigned.

The matter came on for formal hearing on September 26,

2001. The Respond ent called one witness at the hearing, Officer

Bryant Gay, employed by the Office of Motor Carrier Compliance

of the Department. The Petitioners called one witness, Karl A.

Nessamar, a salesman for Leisure Tyme, Inc. The undersigned

also took official re cognition of Chapters 207, 316, 320 and

322, Florida Statutes (2000), and 49 C.F.R., parts 383, 390,

391, 392 and 395.

Upon conclusion of the hearing the parties elected to

obtain a transcript of the proceedings and to avail themselves

of the right to submit Proposed Recommended Orders. Those

Proposed Recommended Orders have been considered by the

undersigned in the rendition of this Recommended Order.

FINDINGS OF FACT

1. On January 22, 2001, the Department of Transportation

(Department) issued a driver vehicle inspection report (No.

FL6050069 - Citation Violation) to Karl A. Nessamar. At the

time the report was issued Mr. Nessamar was driving a private

motor coach owned by Leisure Tyme RV, Inc. (Leisure Tyme), on a

state road. A private motor c oach is a vehicle which does not

exceed the length, width and height limitations of Section

316.515(9), Florida Statutes, and is built on a self - propelled,

bus - type chassis having no fewer than three load - bearing axles

and being primarily designed to provi de temporary living

quarters for recreational, camping or travel use. See Section

320.01(b)(5), Florida Statutes. Leisure Tyme is a recreational

vehicle dealer as defined in Section 320.822(i), Florida

Statutes. The recreational vehicle Mr. Nessamar was operating

did not have a U.S. Department of Transportation number on

display.

2. When Mr. Nessamar was issued the inspection report he

did not possess a Class B driver's license; had no driver's

record of duty status (log book); and had no medical certif icate

in his possession. Further, Mr. Nessamar was operating the

vehicle in the course of his employment for Leisure Tyme at the

time the inspection report was issued.

3. The gross vehicle weight rating of the subject

recreational vehicle was 33,700 po unds. When the inspection

report was issued, Mr. Nessamar was an employee of Leisure Tyme

and was driving the vehicle from Tampa, Florida to Mary Esther,

Florida. It was being returned to Mary Esther after having been

displayed at the Florida RV "Super S how." This recreational

vehicle was not carrying any cargo, passengers or hazardous

materials at the time it was driven by Mr. Nessamar and when the

citation or inspection report was issued. Because of the

issuance of the vehicle inspection report the ve hicle and

Leisure Tyme were placed "out - of - service," which means that none

of the vehicles in its ownership or operation can be driven

until those vehicles and drivers meet all of the requirements of

Title 49 Code of Federal Regulations, Parts 390 through 395 and

Chapter 322, Florida Statutes.

4. The Department contends that whenever a recreational

vehicle with a gross vehicle weight rating (GVW) exceeds 10,000,

pounds and is driven by anyone other than the ultimate consumer

or owner of that vehicle, it be comes a "commercial motor

vehicle." It defines a commercial motor vehicle as any self -

propelled or towed vehicle used on the public highways in

commerce to transport passengers or cargo if such vehicle has a

GVW of 10,000 pounds or more; is designed to t ransport more than

15 passengers including the driver; or is used in the

transportation of materials found to be hazardous for the

purposes of the Hazardous Materials Transportation Act, as

amended (49 USC subsections 1801 et. seq.). See Section

316.003(6 6), Florida Statutes (2000).

5. There is no question, however, that the vehicle at

issue meets the definition of a "private motor coach" because it

has three load - bearing axles, a self - propelled bus type chassis,

is primarily designed to provide tempora ry living quarters for

recreational camping and travel use and does not exceed the

length, width and height limitations provided in Section

316.515(9), Florida Statutes.

6. If indeed the vehicle in question is deemed to be a

commercial vehicle, the driv er, vehicle and owner become subject

to many restrictions and regulations that do not apply to non -

commercial motor vehicles. This is because the Legislature has

adopted many of the federal regulations pertaining to commercial

motor vehicles in Section 31 6.302(1)(b), Florida Statutes,

specifically, 49 C.F.R. Parts 382, 385 and 390 through 397, with

the exception of 49 C.F.R. Section 390.5. Thus, the pivotal

question to determine concerning whether the cited violation is

correct, is whether the vehicle in question is a commercial

motor vehicle and, as related thereto, whether it is a

recreational vehicle.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Sections 120 .569 and 120.57(1), Florida Statutes.

8. Section 322.53, Florida Statutes (2000), states in

pertinent part:

(1) Except as provided in subsection (2),

every person who drives a commercial motor

vehicle in this state is required to possess

a valid commercia l driver's license issued

in accordance with the requirements of this

chapter.

(2) The following persons are exempt from

this requirement to obtain a commercial

driver's license:

(a) Drivers of authorized emergency

vehicles.

(b) Military personnel drivin g military

vehicles.

(c) Farmers transporting farm supplies or

farm machinery within 150 miles of their

farm, or transporting agricultural products

to or from the first place of storage or

processing or directly to or from market,

within 150 miles of their farm.

(d) Drivers of recreational vehicles, as

defined in Section 320.01 . (Emphasis

supplied).

9. Since there is no dispute that the vehicle in question

is a "recreational vehicle," as envisioned by Section 320.01,

Florida Statutes, a commercial dr iver's license should not be

required. The exemption makes no distinction between drivers

who are employed by recreational vehicle dealers in driving such

vehicles and drivers who own the vehicles themselves and drive

them simply for their own pleasure an d purposes.

10. The statute does contain one exception to the

exemptions, however. Section 322.53(3), Florida Statutes,

states: "Notwithstanding subsection (2), all drivers of for - hire

commercial motor vehicles are required to possess a valid

commer cial driver's license issued in accordance with the

requirements of this chapter." Section 322.53(3), Florida

Statutes (2000). Thus a fair reading of the statute would be

that if the recreational vehicle is "for - hire," then a

commercial driver's license would be required.

11. Chapter 322, Florida Statutes, does not define the

term "for - hire." In Chapter 320, however, the term "for - hire

vehicle" is defined as follows:

. . . any motor vehicle when used for

transporting persons or goods for

compensa tion; let or rented to another for

consideration; offered for rent or hire as a

means of transportation for compensation;

advertised in a newspaper or generally held

out as being for rent or hire; used in

connection with a travel bureau; or offered

or used to provide transportation for

persons solicited through personal contact

or advertised on a "share expense" basis.

When goods or passengers are transported for

compensation of the state, or when goods are

transported in a motor vehicle not owned by

the p erson owning the goods, such

transportation is "for hire." . . .

See Section 320.01(15)(a), Florida Statutes (2000). The

Department in this case, in essence, contends that the vehicle

itself constituted the "goods" being transported and that,

therefore, the travel from Mary Esther to Tampa was "for - hire."

12. The Department's interpretation, however, is based on

a federal rule which the Florida Legislature specifically chose

not to adopt. The mere existence of a "business purpose,"

renders such a "for - hire" journey, according to the Department's

position. When asked whether a commercial driver's license

would be required in this situation, the citing officer quoted a

"guidance" issued by the United States Department of

Transportation, which state s that a driver of a recreational

vehicle is not required to possess a commercial driver's license

"if the vehicle is used strictly for non - business purposes."

This guidance, which relates to Part 383 of Title 49 of the Code

of Federal Regulations, was pu blished in the Federal Register at

Volume 62, Page 16393.

13. Since this guidance relates to Part 383, which the

Legislature chose not to adopt in Florida in Chapter 322, it

cannot form a basis for applying that interpretation to the

Florida commerci al driver's license statute. Clearly, the

Legislature chose not to adopt the Federal Regulation concerning

commercial drivers' licenses in the realm of purely intrastate

movement. Moreover, the Legislature stated in no uncertain

terms that drivers of rec reational vehicles are not required to

possess a commercial driver's license, unless their

transportation is "for - hire." Under the Florida definition of

"for - hire" some measure of direct compensation is required. The

mere fact that the transportation is tangentially related to a

business purpose does not suffice.

14. The Department also cited a provision of the Code of

Federal Regulations describing a "drive - away/tow - away

operation." Under the Federal Regulations, a drive - away/tow -

away operation me ans "any operation in which a motor vehicle

constitutes the commodity being transported and one or more set

of wheels of the motor vehicle being transported are on the

surface of the roadway during transportation." 49 C.F.R.

Section 390.5. No authority i s cited which subjects a so - called

drive - away/tow - away operation to the requirements of Parts 383

and 390 through 395. Assuming arguendo that such authority

exists, that authority only prevails to the extent that it is

not inconsistent with Florida law on the subject. See Section

316.302(2), Florida Statutes (2000).

15. Florida law is not consistent with the broader federal

interpretation. The Florida definition states: "when goods are

transported in a motor vehicle not owned by the person ownin g

the goods, such transportation is 'for hire'." Section

320.01(15)(a), Florida Statutes. If the Department's contention

that the vehicle itself constitutes the commodity being

transported is correct, it cannot possibly be a "for - hire"

vehicle as defined by Florida law. The Florida Statute

recognizes what is inherent in the concept of "for - hire," that

is that the person transporting the goods is transporting goods

for some other person or entity which owns the goods. Hence,

the requirement that the pers on owning the goods not be the same

person as the person who is transporting the goods. Since, in

this case, the owner of the "goods" i.e., the vehicle, and the

person transporting the goods are one and the same, under

Section 320.01(15)(a), Florida Statu tes, the transportation is

not for - hire. The facts show that whether or not Mr. Nessamar

owned the vehicle himself he was at least the employee and agent

of the Petitioner/owner corporation. Accordingly, no commercial

driver's license is required. See S ection 322.53(2), Florida

Statutes (2000).

16. Further, the Department's interpretation is

inconsistent with other published rules on the subject. Rule

15C - 12.002(7), Florida Administrative Code, defines a "drive -

away operation" as . . . an operati on in which any vehicle or

vehicles, operated singly or in lawful combinations, new or

used, not owned by the transporting motor carrier , constitute

the commodity being transported." (Emphasis added.) Although

this rule was promulgated by the Department o f Highway Safety

and Motor Vehicles, and is not technically binding on the

Department of Transportation, it is fully consistent with the

Legislature's definition of "for - hire." The Petitioners are

entitled to rely on this rule in determining whether their

vehicle constitutes a commercial motor vehicle. That being the

case, it must be determined whether, if the vehicle in question

is not considered commercial for driver's licensing purposes, is

there any reason to suspect that it is nevertheless a commerci al

motor vehicle for the remaining cited offenses?

17. It would be anomalous to interpret Chapter 316,

Florida Statutes, as requiring a vehicle which is not considered

as being commercial for driver's license purposes to nonetheless

comply with the remaining commercial vehicle requirements. In

interpreting statutes, those which concern the same subject

matter must be considered in para materia and must be read to

achieve a logical consistent result. See Forsythe v. Longboat

Key Beach Erosion Cont. Dist. , 604 So. 2d 452, 456 (Fla. 1992).

18. At the heart of this matter is the meaning of the term

"Any self - propelled or towed vehicle used on the public highways

in commerce to transport passengers or cargo . . ." Section

316.003(66), Florida St atutes (2000) (emphasis added). The

federal regulations on which the Department relies define

commerce as "any trade, traffic or transportation within the

jurisdiction of the United States . . ." 49 C.F.R. Section 383.5

(2000). The essential terms here a re "trade, traffic or

transportation." These terms are synonymous with the concept of

"for - hire." According to the Department the vehicle is "in

commerce" if the owner or driver is being compensated directly

or indirectly for the transportation. The Dep artment also

relies on the federal definition of "for - hire motor carrier" and

equates this term with "in commerce." ( See Transcript page 28.)

The federal regulations define for - hire motor carrier "as any

person engaged in the transportation of goods or p assengers for

compensation." 49 C.F.R. Section 390.5 (2000). Again the

essential element is compensation. The Petitioners herein,

however, were not shown to be compensated directly or indirectly

for the transportation element of their business operation s.

19. The Florida Legislature has required that unless

compensation comes directly from a third party, this element is

lacking and the transportation is thus not "for - hire." Since

the Department correctly equates the terms "for - hire" and "in

commer ce," under the Department's own interpretation a

recreational vehicle which is being driven by a dealer (even for

a business purpose), is not "in commerce." Accordingly, the

vehicle would fail to meet the definition of "commercial motor

vehicle" for all t he remaining cited violations. Thus, the

cited violations cannot stand.

Unadopted Rule :

20. In addition to the Department interpretation being in

contravention of the specific provisions of law implemented, the

Petitioners contend in a statement b y counsel at hearing and in

their Proposed Recommended Order that the Department has also

applied an unadopted rule to the Petitioners. If the

Department's interpretation of relevant law amounts to an

unadopted rule placed into effect without compliance w ith

Chapter 120, Florida Statutes, then it is unenforceable in that

posture even if it were otherwise an allowable legal

interpretation.

21. If the Department's interpretation is an unadopted

rule, the Department must prove factors "a" through "g" o f

Section 120.57(1)(e)1, Florida Statutes. It must thus

ordinarily first be determined whether the interpretation

actually constitutes a rule.

22. Chapter 120, Florida Statutes, defines rule as: "each

agency statement of general applicability that i mplements,

interprets, or prescribes law or policy or describes the

procedure or practice requirements of an agency . . ." Section

120.52(15), Florida Statutes (2000). The Department concedes

that its interpretation is one of general applicability and tha t

it has not adopted this interpretation by administrative rule.

There is no question that the statement interprets or prescribes

law or policy.

23. The Petitioners, however, did not raise the issue in

their Petition. See Section 120.56(4)(a), Florida Statutes.

The Petitioners' counsel made a brief comment on the record

which would indicate that he wished to establish the agency

interpretation to be an agency statement not properly adopted as

a rule. That was the only such argument made, however, unt il

the Petitioners' Proposed Recommended Order was filed.

Consequently, since the challenge to the agency's interpretation

as an unadopted rule was not raised in the Petition and,

although somewhat obliquely asserted at hearing in an argument

on an object ion, it cannot be said that the Respondent

Department was put on notice by the pleading to be prepared with

evidence on this issue, specifically as to "feasibility,"

"practicability," and the various proof elements listed in

Section 120.57(1)(e)(2)a. - g., F lorida Statutes (2000). The

Petitioners did not, at the least, move to conform the pleadings

to the evidence. Thus, although it may have merit, this

attempted challenge to an "unadopted rule" will not be resolved

in this proceeding.

Accordingly, having c onsidered the foregoing Findings of

Fact, Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore

RECOMMENDED that a final order be entered finding that the

viola tions charged are unfounded and quashing the inspection

report issued against the Petitioners herein.

DONE AND ENTERED this 28th day of January, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Admini strative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

File d with Clerk of the

Division of Administrative Hearings

this 28th day of January, 2002.

COPIES FURNISHED :

Scott A. Matthews, Esquire

Department of Transportation

605 Suwannee Street

Mail Station 58

Tallahassee, Florida 32399 - 0450

Julius F. Parker III, Esquire

Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.

215 South Monroe Street, Suite 200

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

James C. Myers, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Buildi ng, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EX CEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.