02-001013 John J. Ardizone vs. Department Of Highway Safety And Motor Vehicles, Division Of Motor Vehicles Status: Closed Recommended Order on Monday, September 23, 2002.

Summary: Department has met its burden to show that Intervenor`s personalized license plate was issued first in time and therefore entitled to retain her personalized license plate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN J. ARDIZONE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1013

)

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, DIVISION OF )

MOTOR VEHICLES, )

)

Respondent, )

)

and )

)

LINDA SCHNURMACHER, )

)

Intervenor. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter by video teleconference on July 18, 2 002,

in Tallahassee, Florida, and Orlando, Florida.

APPEARANCES

For Petitioner: Aileen R. Wilson, Esquire

Livingston & Reilly, P.A.

Post Office Box 2151

Orlando, Florida 32802

For Re spondent: Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway

Neil Kirkman Building, Room A432

Tallahassee, Florida 32399 - 0500

For Intervenor: Walter Forehand, Esquire

Lewis, Long and Walker, P.A.

125 South Gadsden Street, Suite 300

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Is Petitioner, John J. Ardizone, the legal owner of

personalized prestige license plate O/0 or is Intervenor, Linda

Schnurmacher the legal owner of personalized prestige license

plate O/0?

PRELIMINARY STATEMENT

In late 2001, the Department of Highway Safety and Motor

Vehicles (Department) ascertained that two Florida personalized

prestige license plates (personalized plate) bore the

configuration uppercase "O" or zero, both being stamped with the

same symbol on the license plate. Such dupli cation is

prohibited by Section 320.0805(6), Florida Statutes.

Decentralization of the issuing of personalized plates

resulted in some inexactness in record keeping. In October

1999, a redesigned computer system allowed the Department to

begin to asc ertain the presence of duplicates in the system and

to work through the process of eliminating the duplication

through recall. Two registrants, Petitioner, John J. Ardizone

and Intervenor, Linda Schnurmacher, were found to have the same

configuration on t heir personalized plates, namely, "O/0," the

capital letter and zero being stamped with the same character.

The Department notified each party, neither of whom wished to

surrender the configuration. The Department then determined

that Linda Schnurmacher was first in time to have been issued

the configuration. Consequently, by letter dated February 18,

2002, the Department sent a recall notice to Petitioner to

return his personalized plate. By a Petition dated February 25,

2002, Petitioner challenged the Department's determination of

the ownership of the configuration and requested a formal

administrative hearing on the matter. On March 26, 2002, the

Department filed a Motion for Notice to Interested Parties,

which was granted by Order of April 3, 2002. Subsequently,

Linda Schnurmacher filed a Motion to Intervene, which was

granted by Order of May 13, 2002.

At the hearing, Petitioner presented the testimony of Stan

Kirkland and Nellie Causey. Petitioner's Exhibits 2, 11, 14

through 18, 24, and 30 were admitted in evidence. The

Department did not offer the testimony of any witnesses. The

Department's Exhibits 1 through 12 were admitted in evidence.

Linda Schnurmacher testified in her own behalf but did not offer

any documentary evidence.

A Transcrip t of this proceeding was filed with the

Division on August 13, 2002. The parties timely filed their

Proposed Recommended Orders.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findi ngs of fact

are made:

1. With certain exceptions, the Department is vested with

the statutory authority under Subsection 320.0805, Florida

Statutes, to issue a personalized plate to the owner or lessee

of any motor vehicle.

2. In 1991, Data Form Corporat ion, a corporation owned,

jointly at that time, by Linda Schnurmacher and her husband,

Leonard Schnurmacher, leased a 1991 Infiniti automobile from

Infiniti Financial Services whose address on the Vehicle

Registration Certificate (Certificate) was the same as the

Schnurmacher's address, to wit: 4101 North 48th Avenue,

Hollywood, Florida. This vehicle was considered to be Linda

Schnurmacher's personal vehicle. In 1991, the personalized

plate with the configuration of uppercase "O" was registered to

this v ehicle. It is not clear who originally owned the

personalized plate, but apparently the personalized plate

uppercase "O" was relinquished to the lessee, Data Form

Corporation by the lessor, Infiniti Financial Services.

3. The personalized plate uppercase "O" was placed on a

series of vehicles, some leased by Data Form Corporation and

driven personally by Linda Schnurmacher, and some leased

directly by Linda Schnurmacher, from various lessors

continuously since 1991. The registrant varied, sometimes the

l essor, sometimes Data Form Corporation as lessee, sometimes

Linda Schnurmacher as lessee.

4. As part of the divorce settlement in 1998, Data Form

Corporation, previously owned jointly by Linda Schnurmacher and

Leonard Schnurmacher, went to Leonard Schnurm acher; and the

right to use the personalized plate uppercase "O" went to Linda

Schnurmacher

5. Since 1991, each time a vehicle driven by Linda

Schnurmacher was purchased, the selling motor vehicle dealership

registered the vehicle, receiving from the the n present

registrant the information necessary to assign the uppercase "O"

personalized plate to the registrant Linda Schnurmacher's new

vehicle.

6. In 1993, Petitioner John J. Ardizone applied for and

was issued a personalized plate "zero" or "0." At t he time, the

personalized plate uppercase "O" was in use on the vehicle

driven by Linda Schnurmacher, registered in the name of Infiniti

Financial Services, the lessor of the vehicle.

7. From the perspective of the appearance of the symbols

on the persona lized plate, the uppercase "O" and zero (0) are

identical, struck with the same dye. While the dye itself has

changed from time to time, since the early '70's the same is

used to stamp both uppercase "O" and zero. Until 1999, this

configuration was known internally to the Department as

uppercase "O"; following 1999, it became known as "zero." These

designations are used to regularize the representation due to

the confusion, which sometime took place in the individual tag

office in typing the configuratio n. Despite the name confusion,

the configuration on the plate is determinative of duplication

between two personalized plates.

8. The personalized plate issued to Petitioner in 1993,

and each subsequent personalized plate issued to Petitioner, was

improp erly issued by the Department, there being a prohibition

on the issuance of two personalized plates with the same

configuration

9. On October 1, 1999, the Department redesigned its motor

vehicle system whereby the letter "O" now defaults to the number

"ze ro." As a result of that process, the Department has

identified numerous duplications in personalized plate

configurations. Duplications of the same configuration on a

personalized plate are not allowed. Where there are

duplications of the same configu ration, the Department

determines ownership of that configuration by proving which

person had that configuration first.

10. In sorting out the irregularities, discovered

following the institution of the computer system in October

1999, in duplicate pers onalized plates, the Department has

consistently recalled the personalized plate of the most recent

registrant of a personalized plate.

11. Personalized plates registered to leasing companies

are treated as being issued to the lessee as well as the lessor .

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Subsection 120.57(1), Florida Statutes.

13. The burden of proof is on the party asserting the

affirm ative of an issue before an administrative tribunal,

Florida Department of Transportation v. J.W.C. Company, Inc .,

396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the

Department must establish facts upon which its allegations are

based by a prepo nderance of the evidence. Department of Banking

and Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996) and

Subsection 120.57(1)(j), Florida Statutes.

14. Subsections 320.0805(4) and (6), Flori da Statutes

(2001), provide:

(4) The department is authorized to

reject requests [for personalized plates]

deemed by it to be objectionable, and the

department is further authorized to recall,

during a registration period, any issued

personalized licens e plate determined by it

to be obscene or otherwise objectionable .

* * *

(6) A personalized prestige license plate

shall be issued for the exclusive continuing

use of the applicant. An exact duplicate of

any plate may not be issued to any other

applic ant during the same registration

period. An exact duplicate of any plate may

not be issued for any succeeding year unless

the previous owner of a specific plate

relinquishes it by failure to apply for

renewal of reissuance for three consecutive

annual per iods following the original year

of issuance. (Emphasis furnished.)

15. The improper issuance of a personalized plate owing to

the presence of the configuration on an existing personalized

plate at the time of issuance is reasonably considered

obje ctionable by the Department.

16. The Department has met its burden to show that the

personalized plate issued to the Schnurmacher vehicle was not

only first in time but was properly issued on each occasion.

Likewise, the Department has met its burde n to show that the

initial issuance of Petitioner's personalized plate and each

subsequent issuance was in error.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency enter a final order requiring

Petitioner John J. Ardizone to surrender the personalized plate

presently in his possession.

DONE AND ENTERED this 23rd day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. CAVE

Administrative Law Ju dge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hear ings

this 23rd day of September, 2002.

COPIES FURNISHED :

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway

Neil Kirkman Building, Room A432

Tallahassee, Florida 32399 - 0500

Rebecca H. Fischer, Esquire

Fischer & Feldman, P.A.

Oakwood Business Plaza

One Oakwood Boulevard, Suite 250

Hollywood, Florida 33020

Gerald S. Livingston, Esquire

Livingston & Reilly, P.A.

Post Office Box 2151

Orlando, Florida 32802

Aileen R. Wilson, Esquire

Livingston & Reilly, P.A.

Post Office Box 2151

Orlando, Florida 32802

Walter Forehand, Esquire

Lewis, Long and Walker, P.A.

125 South Gadsden Street, Suite 300

Tallahassee, Florida 32301

Carl A. Ford, Director

Division of Motor Vehicles

Department of Highway Safety and Motor Vehicles

2900 Apalachee Parkway

Neil Kirkman Building, Room B - 439

Tallahassee, Florida 32399 - 0600

Enoch Jon Whitney, General Counsel

Division of Motor Vehicles

Department of Highway Safety and Motor Vehicles

2900 Apalachee Parkway

Neil Kirkman Buil ding, Room A432

Tallahassee, Florida 32399 - 0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.