10-005714RX Moshe Leib vs. Hillsborough County Public Transportation Commission A Legislatively Created Independant Special District Of The State Of Florida Status: Closed DOAH Final Order on Friday, October 8, 2010.

Summary: Petitioner, who did not testify, call other witnesses, or sucessfully admit exhibits, failed to satisfy the burden of proof that the existing rule is invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOSHE LEIB , )

)

Petitioner , )

)

vs. ) Case No. 10 - 5714RX

)

HILLSBOROUGH COUNTY PUBLIC )

TRANSPORTATION COMMISSION A )

LEGISLATIVELY CREATED )

INDEPENDANT SPECIAL DISTRICT OF )

THE STATE OF FLORIDA , )

)

Respondent . )

)

FINAL ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH), on August 31, 2010. The ALJ conducted the

hearing by telephone in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: Moshe Leib, pro se

Post Office Box 782

Indian Rocks Beach, Florida 33785

For Respondent: Orlando Perez, Esquire

Hillsborough County Attorney's Office

601 East Kennedy Boulevard, 27th Floor

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue is whether the definition of the term "Limousine"

in Rule 1.4 of the Rules of the Hillsborough County Public

Transportation Commission (Effective August 10, 2010) (Rule 1.4) 1

is an invalid exercise of delegated leg islative authority within

the meaning of Subsections 120.52(8) and 120.56(1)(a), Florida

Statutes (20 10 ). 2

PRELIMINARY STATEMENT

On July 15, 2010, Petitioner challenged Rule 1.4 by filing

with DOAH a Petition Seeking Administrative Determination of the

Inv alidity of Agency Rules (the Rule Challenge). Respondent

filed a Motion to Dismiss Petition for Lack of Standing (the

Motion to Dismiss).

The Motion to Dismiss alleges that the Petition fails to

show Petitioner has standing and is legally insufficient.

P etitioner filed a written opposition to the Motion to Dismiss,

including a Notice of Supplemental Authority. Ruling on the

Motion to Dismiss was reserved for disposition in this Final

Order.

The parties were unable to file a joint pre - hearing

stipulation. Each party timely filed a unilateral pre - hearing

stipulation.

At the hearing, Petitioner did not testify and did not call

any other witnesses. Petitioner submitted 16 exhibits for

admission into evidence. Respondent presented the testimony of

one witn ess and submitted five exhibits for admission into

evidence.

The identity of the witnesses and exhibits and the rulings

regarding each are recorded in the record of the hearing.

Neither party requested a transcript of the hearing.

FINDINGS OF FACT

1. Res pondent is an Independent Special District created

by the Florida Legislature. Ch. 01 - 777, § 1, at 1, Laws of Fla.

The Legislature created Respondent, in relevant part, for the

purpose of regulating the operation of public vehicles upon the

public highwa ys of Hillsborough County, Florida (Hillsborough

County), and its municipalities. Ch. 01 - 777, § 2, at 2, Laws of

Fla.

2. Petitioner previously operated vehicles for hire within

Hillsborough County in conformity with the rule he now

challenges. Petitione r previously held a Hillsborough County

Public Transportation Commission (HCPTC) Certificate under the

name of Moshe Leib, d/b/a TBLimo.com. (TBL), and operated a

transportation service pursuant to that HCPTC Certificate.

3. On or about August 27, 2009, P etitioner sold the

intangible assets of TBL, including the right to operate under

the HCPTC Certificate, to Ambassador Limo Services, Inc.

(Ambassador). Mr. Kenneth Lucci is the president and chief

executive officer of Ambassador and the witness for Respo ndent

in this proceeding.

4. As part of the sale transaction between Petitioner and

Ambassador, Petitioner signed a document identified in the

record as the Covenant Not to Compete (the CNC). The CNC

prohibits Petitioner from conducting commercial transportation

business in Hillsborough County for six years from the date of

the CNC.

5. It is undisputed that Petitioner has opened a website

identified in the record as Blackcarservice.net (Blackcar).

Petitioner intends to form and operate a commercia l

transportation business in which Petitioner may transport

passengers from Citrus and Hernando counties to destinations in

Hillsborough Co unty and back to their origin.

6. Conduct of part of the business proposed for Blackcar

would not require an HCPTC C ertificate. The remainder of the

proposed Blackcar business would require an HCPTC Certificate.

7. If a Blackcar trip were a continuous roundtrip from the

place of origin in either Citrus or Hernando C ounty and back to

the place of origin, it is undisput ed that Petitioner would not

be required to obtain a n HCPTC Certificate for such activity.

However, Petitioner would be required to have a n HCPTC

Certificate if a proposed Blackcar trip were to originate in

either Citrus or Hernando C ounty, Petitioner were to drop the

passenger at a destination in Hillsborough County , and later

return to take the passenger back to Citrus or Hernando County ;

or , after dropping the passenger in Hillsborough County ,

Petitioner were to pick up another passenger in Hillsboro ugh

County for return to his or her place of origin in Citrus or

Hernando County .

8. Petitioner challenges Rule 1.4. Rule 1.4 provides:

ÐLimousineÑ means any motor vehicle for hire

not equipped with a taximeter, with the

capacity for 15 passengers or les s,

including the driver. This definition

consists of vehicles which are recognized by

the industry as ÐluxuryÑ vehicles, that are

considered as high - end luxury vehicles by

the manufacturer and vehicles that have been

uniquely modified so as to provide Ðlu xuryÑ

limousine service. The ÐluxuryÑ quality of

vehicles will be determined by assessing

aesthetics of the interior and exterior of

the vehicles, amenities provided to the

passenger, spaciousness and comparison to

current industry standards for vehicles

performing limousine service in Hillsborough

County. Unless otherwise indicated, use of

the word ÐlimousineÑ within these Rules

shall be meant to include all varieties of

limousines discussed in these rules,

collectively. Limousines can be sub -

categorize d as follows:

a. ÐStretch LimousineÑ or a sedan/SUV model

that was manufactured or remanufactured with

an extended wheel base or;

b. ÐLimousine SedansÑ or luxury vehicles

with space for at least two passengers

behind the driver and additional space

beh ind those passengers for luggage, or;

c. ÐSport Utility VehiclesÑ (SUV) that are

top - of - the - line models and have the luxury

package options included to provide a luxury

service, or;

d. ÐLimousine BusesÑ that are used for

passenger transport for - hire. These buses

can have forward facing seating or can be

modified for circular or ÐpartyÑ seating.

The Director, subject to Commission review,

may develop and update a list of vehicles

which qualify as Limousine Sedans and SUVs.

9. A preponderance of the e vidence does not show that

Petitioner's intent to form and operate a commercial

transportation business, as described in paragraph 5, is of

sufficient immediacy to give Petitioner standing to challenge

Rule 1.4. Any attempt by Petitioner to engage in busi ness in

Hillsborough County within the next six years in a manner that

requires an HCPTC Certificate will violate the CNC and subject

Petitioner to potential litigation with Ambassador. Assuming

arguendo that Petitioner had standing, a preponderance of

ev idence does not show that the challenged rule creates the

adverse economic effect alleged by Petitioner.

10. For reasons stated in the Conclusions of Law, the

burden of proof is on Petitioner. Petitioner did not testify,

did not call any witnesses, and d id not successfully admit any

exhibits into evidence. The preponderance of evidence was

submitted by Respondent. That evidence was credible and

persuasive. Petitioner's cross - examination of Respondent's

evidence was neither credible nor persuasive to th e trier of

fact.

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over the parties and subject

matter in this proceeding. §§ 120.569 and 120.56. DOAH

provided the parties with adequate notice of the final hearing.

12. Petitioner bears the ultimate burden of proving the

invalidity of the challenged rule. § 120.56(3)(a); Florida

Board of Medicine, et al . v. Florida Academy of Cosmetic

Surgery, Inc., et al. , 808 So. 2d 243 (Fla. 1st DCA 2002).

Petitioner must show by a p reponderance of the evidence that the

challenged rule is invalid as promulgated. Charity v. Florida

State University , 680 So. 2d 463 (Fla. 1st DCA 1996).

13. In order to be substantially affected by the

challenged rule, Petitioner must show by a preponde rance of the

evidence that the rule will result in a real and immediate

injury in fact and that the alleged interest is within the zone

of interests to be protected or regulated. Ward v. Board of

Trustees of the Internal Improvement Trust Fund , 651 So. 2d

1236, 1237 (Fla. 4th DCA 1995). A preponderance of the evidence

does not show that Petitioner satisfies the immediacy test.

14. Several evidential deficiencies preclude a finding

that Petitioner's substantial interests are affected by the

challenged rul e. A preponderance of the evidence does not show

that Petitioner has applied for and been denied an HCPTC

Certificate for an existing business based on the challenged

rule. See Jacoby v. Florida Board of Medicine , 917 So. 2d 358

(Fla. 1st DCA 2005) (New York physician that had applied for and

been denied a temporary certificate in Florida had standing to

challenge Florida rule). A preponderance of the evidence does

not show that Respondent charged Petitioner with operating a

business in violation of the rule. See Lanoue v. Florida

Department of Law Enforcement , 751 So. 2d 94 (Fla. 1st DCA 1999)

(driver who was arrested and charged with DUI had standing to

challenge rule regulating breath testing machines). Finally, a

preponderance of the evidence does n ot show how Petitioner can

obtain an HCPTC Certificate and operate within Hillsborough

County pursuant to a n HCPTC Certificate during the next six

years without violating the CNC with Ambassador.

15. Alternatively, if it were determined that Petitioner

is substantially affected by the challenged rule, a

preponderance of the evidence does not show that the challenged

rule has any adverse impact on Petitioner. Petitioner did not

testify, did not call any witnesses, and did not submit any

evidence or legal a rgument to overcome Respondent's objections

to the admissibility of Petitioner's exhibits, which were

sustained.

16. The challenged rule is not an invalid exercise of

delegated legislative authority within the meaning of

S ubs ection 120.52(8). The challen ged rule complies with the

flush paragraph of the cited statute. In relevant part, the

Legislature authorizes Respondent to adopt rules for safety and

equipment requirements for limousines. Ch. 01 - 777, § 5(m),

at 7, Laws of Fla. The challenged rule impl ements that

legislative authority and provides clarifica tion to prospective

applicants.

ORDER

Based on the foregoing Findings of Fac t and Conclusions of

Law, it is

ORDERED that Rule 1.4 is v alid as promulgated and that the

Rule Challenge is dismissed for the reasons stated herein.

DONE AND ORDERED this 8th day of October , 2010 , in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of October , 2010 .

ENDNOTES

1/ References to Rules are to rules promulgated as o f August 31,

2010. The parties refer in their P roposed F inal O rders to

Rule 1.15, and the Rule Challenge was filed challenging

R ule 1.15. However, changes between the date of the Rule

Challenge and the date of this Final Order resulted i n

renumbering of the rules without any substantive changes in

former Rule 1.15 and current Rule 1.4.

2/ References to subsections, sections, and chapters are to

Florida Statutes (20 10 ) , unless otherwise stated.

COPIES FURNISHED :

Moshe Leib

Post Office Box 782

Indian Rocks Beach, Florida 33785

Orlando Perez, Esquire

Hillsborough County Attorney's Office

601 East Kennedy Boulevard, 27th Floor

Tampa, Florida 33602

Cesar H. Padilla, Interim Executive Director

Hillsborough County Public Transportation

Commission

2007 West Kennedy Boulevard

Tampa, Florida 33606

F. Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures 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 cop y of a Notice of Administrative 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 Administrative Appeal must be

filed within 30 days of rendition of the order to be reviewed.