88-002315 Department Of Highway Safety And Motor Vehicles vs. B-Line Wrecker Service Status: Closed Recommended Order on Thursday, December 8, 1988.

Summary: DHSMV failed to prove Respondent chased wrecks, solicited at accident sites, or employed an answering service. Dismissal recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HIGHWAY SAFETY AND )

MOTOR VEHICLES, DIVISION OF )

FLORIDA HIGHWAY PATROL, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2315

)

B-LINE WRECKER SERVICE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

This matter came on for hearing in Fort Walton Beach, Florida, before the

Division of Administrative Hearings by its duly designated Hearing Officer,

Diane Cleavinger, on August 11, 1988. The parties are represented as follows:

For Petitioner: R. W. Evans, Esquire

Assistant General Counsel

Department of Highway Safety

Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 3299-0504

For Respondent: Michael Webster, Esquire

12 Old Perry Road

Post Office Box 873

Shalimar, Florida 32579

The issue addressed in this proceeding is whether B-Line Wrecker Service

has violated Rule 15B-9.007, Florida Administrative Code, in that it allegedly

utilized an answering service in responding to Highway Patrol Wrecker Rotation

List calls and/or responded to the scene of an accident without prior Highway

Patrol request.

At the hearing the Petitioner called eight witnesses and introduced two

exhibits. Respondent called three witnesses.

3. Respondent, B-Line Wrecker Service, is a wrecker business owned by

Sally and Barry Stephens. They are husband and wife. They have operated B-Line

Wrecker Service since 1979. However, Mr. Stephens' wrecker experience goes back

to 1975 when he was in business with his father. The business is located in Ft.

Walton Beach and is on the wrecker rotation list maintained by the Florida

Highway Patrol for the Ft. Walton Beach zone which includes Shalimar. In

February 1988, B-Line Wrecker Service employed three wrecker drivers. The

business is considered by the Highway Patrol to be one of the best wrecker

services in that particular zone and in fact has answered 100 percent of their

calls to the Highway Patrol's satisfaction.

4. The first alleged violation occurred sometime around February 12, 1988,

when Sergeant Pittman of the Florida Highway Patrol, Crestview Division,

attempted to contact Respondent's Wrecker Service by telephone. No evidence was

established as to the telephone number the Sergeant utilized in attempting this

telephonic contact. The Sergeant reported to Lieutenant Robert Farrior, Jr.,

that when he contacted Respondent's Wrecker Service, he did not recognize the

person's voice who answered the phone. He inquired as to who the person was and

was informed that they were an employee of Alert Answering Service. The

Sergeant did not testify at the hearing. However, other evidence was presented

which showed that Respondent does employ Alert Answering Service.

5. Alert Answering Service, formerly Professional Exchange, has been

employed by B-Line since 1981 as a dispatch service and not as an answering

service. Alert does offer an answering service. However, Respondent does not

take advantage of that service.

6. The answering service offered by Alert is one in which a third party

answers the phone call of the customer and takes a message which the customer

later picks up at their convenience. The service is accomplished through the

use of regular call forwarding and does not require any specialized equipment.

7. The dispatch service offered by Alert requires dedicated extension

telephone lines between the business and Alert's location as well as a dedicated

phone. The telephone call is taken by an Alert operator. The operator answers

the phone using B-Line's name. The call is immediately transmitted via a

dedicated business radio to a wrecker truck which is dispatched upon the

transmission. No messages are ever held.

8. The only time Alert is utilized by B-Line is when both owners are

absent from the business. Otherwise B-Line takes all its own calls. No

evidence was presented of any specific instances in which B-Line utilized

Alert's dispatch service in responding to a wrecker rotation call. However, due

to the frequency of rotation list calls Alert has probably taken such calls at

some time since contracting with B-Line in 1981. The Florida Highway Patrol

would simply have been and apparently was unable to detect the difference

between the phone being answered at Alert or at B-Line.

9. Alert is an independent contractor employed by B-Line. However, Alert

does not perform any duties different from what a receptionist/dispatcher would

perform if B-Line was to hire its own receptionist.

10. The Division's Deputy Director, John Carmody, was the person

responsible for developing and in fact drafted the Division's Chapter 15B-9,

Florida Administrative Code, governing the wrecker service rotation list. He

testified that the term "answering service" as used in the Rule did not need a

definition, but had a common sense meaning. It was apparent from his testimony

that the meaning he attributed to the term "answering service" is when any third

person who is not employed by the wrecker service answers the telephone for that

company and relays the messages to that company. Mr. Carmody's definition was

disclosed at a public hearing held to discuss Chapter 15B-9, Florida

Administrative Code, as a proposed rule. Mr. Stephens was present at the public

hearing and actually discussed the meaning of the term "answering service" with

Mr. Carmody. However, the evidence was unclear as to the limits Mr. Carmody's

definition would place on the employment practices of a wrecker service in

employing an independent contractor, such as Alert is employed by B-Line. The

evidence was clear that Mr. Stephens thought his use of Alert as a dispatch

service was legal. This evidence demonstrates that reasonable people can differ

on the meaning of the term "answering service" given the differences in the two

services and the distinction between the two services made by Alert which is in

the business of various telephone services. Upon this set of facts, a

reasonable person could not anticipate that the term "answering service" in the

Rule would include a dispatch service.

11. Mr. Carmody further testified that the purpose of prohibiting a

wrecker service on the rotation list from utilizing an answering service was to

insure that when the highway patrol called for a wrecker the dispatcher spoke to

someone who could tell them if a wrecker was available and the length of time

necessary for that business to respond. 1/ However, the evidence showed that

those questions were not asked when the Highway Patrol would contact the

business who was first in line on the rotation list. The evidence showed that

the Highway Patrol's dispatcher would simply call the number for a wrecker

service and ask that a wrecker be sent and give the location and general

information about the accident. In B-Line's case, a wrecker has never been

unable to respond when the Highway Patrol called. It should be noted that

Chapter 15B-9, Florida Administrative Code, provides a method for calling the

second business in line on the rotation list if the first service either fails

to respond or advises it cannot respond timely.

12. The evidence clearly shows that Respondent was not utilizing an

answering service within the meaning of that term under the state of technology

today. Respondent did, however, use a dispatch service which is very different

from an answering service. A dispatch service is not prohibited by the

Division's Rule and there was no clear evidence that Mr. Carmody's definition of

"answering service" was disseminated to the public in a mutually understandable

manner. Therefore, Respondent has not violated the provisions of the Division's

Rules by utilizing Alert in the manner that it does. 2/

13. The second alleged violation occurred on February 14, 1988. On that

date, at approximately 8:30 p.m., Matthew Buharp and Steven Brown had an

automobile accident at the corner of 5th Avenue and 4th Street in Shalimar,

Florida. Sheriff's Deputy Whatmough was dispatched to the scene of Mr. Buharp's

accident. At the time Ken Griffin, an employee of B-Line, was sitting at home

watching television with his fiance', Dondeana Waldon, in his undershorts. It

was his day off. Mr. Griffin lived only two blocks from the scene of the

accident. He heard the initial dispatch call to Officer Whatmough over a

scanner he had turned on; however, Mr. Griffin, at that time, did not think

about going down to the accident.

14. When Officer Whatmough arrived at the scene of the accident, he saw

that it was at least facially a very bad accident. He observed one vehicle

rolled over in the ditch next to the road and the other vehicle partially

hanging over the ditch. The driver of the truck was hanging out of the window.

Officer Whatmough immediately got on his radio and asked for all the help he

could get because it was a roll-over. Mr. Griffin heard Officer Whatmough's

call for help and told his fiance' that it was a roll-over and that he needed to

get down to the accident as soon as possible to help out. 3/ Mr. Griffin was

well acquainted with Officer Whatmough since he had worked with him before. He

recognized the concern and tension in the officer's voice. He got dressed in

regular clothes and drove his wrecker with the emergency lights on down the two

blocks to the accident. He legally parked the vehicle some distance from the

actual accident scene since he had not been called to the scene as a wrecker

driver. He then walked down to the actual accident scene located at the

intersection and the ditch and offered his services to the Officer. He was

informed at that time that his services were not needed, but that his offer was

appreciated. Just prior to Mr. Griffin arriving at the accident scene, the

ambulance service had arrived as well as the fire department and these agencies

were already taking care of the occupants of the vehicles.

15. By sheer coincidence, Mr. Griffin had parked his wrecker in front of

Matthew Buharp's townhome. When the Officer told Mr. Griffin that his help was

not needed, Mr. Griffin left the scene of the accident and walked back towards

his wrecker. From that vantage point, Mr. Griffin watched the goings on at the

accident scene. At some point, Mr. Buharp's father arrived at the scene. Mr.

Buharp got to the accident a little after 9:00 p.m. While he was walking back

towards his son's townhome he observed his sister-in-law and another man and

headed in their direction. Mr. Griffin was standing fairly close to this group

of people in front of his tow truck smoking a cigarette. Mr. Buharp saw Mr.

Griffin and asked him if he was there to tow his truck. Mr. Griffin told him no

and attempted to tell him the procedure for obtaining the services of a wrecker.

He informed him that if he wanted him to tow his vehicle he would have to talk

to the Highway Patrolman and pointed the Highway Patrolman out. Evidentally,

Mr. Buharp did not thoroughly understand who Mr. Griffin was directing him to.

He approached a sheriff's bailiff, William Jones, who like Mr. Griffin had heard

the report on his scanner and had come to help. Mr. Jones redirected Mr. Buharp

to the proper police authority.

16. Mr. Buharp then approached Trooper Gross who did not have time to talk

to him at that point in time since he was busy taking care of evidentiary

matters. At least one other conversation was held between Mr. Buharp and Mr.

Griffin. The conversation was witnessed by Dondeana Waldon now Griffin's wife.

Mr. Buharp had again approached Mr. Griffin and asked if he could tow his truck.

Mr. Griffin again tried to explain the wrecker rotation system. No one else saw

any of the happenings between Mr. Buharp and Mr. Griffin and the only other

testimony on this point was hearsay regarding what either Mr. Buharp or Mr.

Griffin had allegedly said to someone else. Mr. Buharp's memory of both

conversations that he had with Mr. Griffin was very fuzzy and not completely

reliable as to the content of either conversation. The fuzziness of Mr.

Buharp's memory is understandable since he had greater concerns on his mind

because his son had been taken to the hospital. Likewise, Mr. Buharp's

recollection of the sequence of events surrounding the conversations is highly

unreliable. Mr. Griffin on the other hand was corroborated by his wife on the

second conversation and on the events occurring at Mr. Griffin's house.

17. Later, Mr. Buharp did eventually contact Trooper Grossooper Gross

inquired about Mr. Buharp's preference for wrecker services and explained about

the rotation list. Mr. Buharp had no preference and requested a rotation

wrecker.

18. Pursuant to Mr. Buharp's request a rotation wrecker was called. The

wrecker dispatched was owned by Playground Shell Wrecker Service and actually

towed one of the vehicles.

19. Later, another B-Line wrecker, being operated by Paul Kline, passed

near the scene of the accident. Paul Kline stopped, but legally parked his

wrecker more than 300 feet to the south of the accident on 4th Street. The

wrecker was not readily observable by people at the accident scene.

20. Paul Kline was on duty with B-Line Wrecker Service on February 14,

1988.

21. No evidence was presented that the location of either B-Line wrecker

was detrimental to public safety or interfered with the processing of the

accident by the proper authorities. Likewise, no such evidence was presented

that the actions of either of the wrecker drivers was detrimental to public

safety or interfered with the processing of the accident.

22. The term "accident scene" is not defined in the Rule. Mr. Carmody

testified that the Division's definition of "accident scene" included any area

readily viewable from the actual wreck site. This expanded definition is not

one a reasonable person could glean from the Rule. Therefore, since neither

truck was at the actual scene of the accident far purposes of towing vehicles

neither incident can constitute a violation of Rule 15B-9.

23. Moreover, the evidence showed that Mr. Griffin was not on duty on

February 14. Chapter 15B-9, Florida Administrative Code, therefore, by its own

terms does not apply to Mr. Griffin and his actions do not constitute violations

of the provisions of Chapter 15B-9, Florida Administrative Code. Further, the

evidence showed that Mr. Griffin did not solicit any business from Mr. Buharp.

24. As to Mr. Kline, there was no evidence that he had any contact with

any trooper, deputy, or other individual involved in the accident, or either

directly or indirectly solicited any business. The evidence shows that Mr.

Kline simply stopped to see what was going on. He was not responding to the

accident as a tow truck driver. The wrecker was not parked at the accident

scene. Therefore, no violations of Chapter 15B-9, Florida Administrative Code,

occurred by Mr. Kline's actions.

25. Mr. Stephens has instructed his employees not to "run or chase" wrecks

and the evidence did not show that his employees do act in such a manner.

However, he has told them to stop at a wreck if in their discretion they thought

they could be of some service at the wreck site. The services he was referring

to were for the rendering of first aid, setting flares, directing traffic,

notifying the police authorities, etc., and not the services of a tow truck.

26. Mr. Stephens testified that because of the time his trucks spend on

the road his trucks as well as he himself have often come upon wrecks before any

police authorities were aware that a wreck had occurred and often take the

initiative in handling the situation until police authorities arrive. Once the

police arrive, they turn the wrecks over to those authorities. The evidence did

not demonstrate any deliberate attempt on the part of Respondent or his drivers

to respond to an accident scene for the purpose of obtaining towing business,

i.e., running or chasing wrecks. In the same vein, individual Florida Highway

Patrol officers who come upon an accident have ignored the wrecker rotation list

and sometimes call one of Respondent's wreckers over to an accident scene. The

evidence disclosed that these actions promoted public safety and were desired by

the authorities in charge. None of Mr. Stephens policies support a finding that

B-Line has violated any of the provisions of Rule 15B-9, Florida Administrative

Code.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this action. Section 120.57(1), Florida

Statutes.

28. Petitioner's authority to establish a wrecker operator call allocation

system is found at Section 321.051, Florida Statutes. The statute states:

321.051 A wrecker operator system for

removal of wrecker, disabled, or

abandoned vehicles. 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 wrecked or

disabled vehicles, in the event 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 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 for.

Section 321.051, Florida Statutes, must be read in pari materia with Section

321.14, Florida Statutes. Section 321.14, Florida Statutes, requires a liberal

statutory construction of Chapter 321, Florida Statutes, for the purpose of

promoting public safety.

29. Chapter 15B-9, Florida Administrative Code, implements Section

321.051, Florida Statutes. Rule 15B-9.002(2), defines an operator or wrecker

operator to be an individual, partnership, corporation or business entity

engaged for hire in recovery, towing, or removal of wrecked, disabled, stolen,

or abandoned motor vehicles. This rule further provides that a hired driver or

employee shall be governed by these rules while on duty, and unless otherwise

stated, shall be considered an agent of the wrecker operator. B-Line Wrecker

Service, which participates in the Florida Highway Patrol rotation wrecker

system, is an operator or wrecker operator pursuant to Rule 15B-9.002(2).

Further, Paul Kline, who was on duty on February 14, 1988, as a hired driver of

B-Line, would be an agent of the Respondent for the purposes of Chapter 15B-9.

However, Ken Griffin cannot be considered such an agent since he was not on duty

on February 14, 1988. Chapter 15B-9, therefore, by its own terms does not apply

to Mr. Griffin and cannot be used to regulate his conduct.

30. Rule 15B-9.003(8), prohibits the use of answering services or beepers

by a wrecker operator. As noted earlier, a reasonable person would be unable to

determine that a dispatch service would be included within the term "answering

service." In fact, a dispatch service is very different from an answering

service. Therefore, no violation of Chapter 15B-9 was shown by B-Line's use of

a dispatch service in this case.

31. Rule 15B-9.003(7), provides that wrecker operators shall only respond

to an accident pursuant to call from a law enforcement agency. Rule 15B-

9.007(2), prohibits chasing or running wrecks. Rule 15B-9.007(3), prohibits

soliciting by a wrecker operator at the scene of an accident. As to any of

these provisions, no evidence was produced by the Division which demonstrated

that any violations occurred under these provisions.

RECOMMENDATION

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

RECOMMENDED:

That the Administrative Complaint be dismissed.

DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida.

_________________________________

DIANE CLEAVINGER

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 8th day of December, 1988.

ENDNOTES

1/ However, there is no requirement in the rule that the person answering the

phone have such information.

2/ It should be noted that although this case is not a rule challenge, it is

very doubtful that the Florida Highway Patrol has the authority under Section

321.051, Florida Statutes, to regulate a wrecker operators use of a dispatch

service as used by the Stephens. The statute on its face appears to only grant

the Florida Highway Patrol authority to regulate safety qualifications for

drivers and equipment and mechanical standards for equipment.

3/ Mr. Griffin is trained in emergency first aid.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2315

The facts contained in Paragraph 1, 2, 3, 4, and 15 of Petitioner's

Proposed Findings of Fact have been adopted in substance, in so far as material.

The facts contained in the first seven sentences of paragraph 5 of

Petitioner's Proposed Findings of Fact have been adopted, in substance, in so

far as material. The facts contained in the eighth and ninth sentence were not

shown by the evidence. The facts contained in the tenth sentence are

subordinate.

The facts contained in the first two sentences of paragraph 6 of

Petitioner's Proposed Findings of Fact are subordinate. The facts contained in

the second and fourth sentences were not shown by the evidence. The facts

contained in the third sentence are adopted.

The facts contained in paragraph 8 and 23 of Petitioner's Proposed Findings

of Fact are irrelevant.

The facts contained in the first sentence of paragraph 9 of Petitioner's

Proposed Findings of Fact were not shown by the evidence. The facts contained

in the second sentence are irrelevant.

The facts contained in the first sentence of paragraph 10 of Petitioner's

Proposed Findings of Fact was not shown by the evidence. The remainder of

paragraph 10 is subordinate.

The facts contained in the first sentence of paragraph 11 of Petitioner's

Proposed Findings of Fact were not shown by the evidence. The facts contained

in the second and third sentences of paragraph 11 are adopted.

The fact contained in paragraph 12, 16, 21 and 22 of Petitioner's Proposed

Findings of Fact are subordinate.

The facts contained in the first three sentences paragraph 13 of

Petitioner's Proposed Findings of Fact are adopted. The facts in the fourth

sentence were not shown by the evidence.

The facts contained in the first two sentences of paragraph 14 of

Petitioner's Proposed Findings of Fact were not shown by the evidence. The last

two sentences of paragraph 14 are irrelevant.

The facts contained in the first, second, fifth, sixth and seventh

sentences of paragraph 17 of Petitioner's Proposed Findings of Fact were not

shown by the evidence, The facts contained in the third and fourth sentences are

adopted.

The facts contained in the first and last sentences of paragraph 18 of

Petitioner's Proposed Findings of Fact were not shown by the evidence. The

facts contained in the second and third sentence are adopted. The facts

contained in the fourth and fifth sentence are subordinate.

The facts contained in paragraph 19, 24 and 25 of Petitioner's Proposed

Findings of Fact were not shown by the evidence.

The facts contained in the first two sentences of paragraph 20 of

Petitioner's Proposed Findings of Fact of paragraph 20 of Petitioner's Proposed

Findings of Fact are subordinate. The facts contained in the remainder of

paragraph 20 are irrelevant.

The facts contained in the first sentence of- paragraph 26 of Petitioner's

Proposed Findings of Fact were not shown by the evidence. The last sentence of

paragraph 26 is subordinate.

The facts contained in paragraphs 1, 5, 6, 8, 9, 10, 12, 13, 14, 15, 16,

17, 18, 19, 20, 21, 24, 25, 26, 29, 32, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45,

48, 51, 52, 54, 57, 58, 59, 61, 62 and 63 of Respondent's Proposed Findings of

Fact are adopted in substance, in so far as material.

The facts contained in paragraph 2, 3, 4, 7, 11, 23, 27, 30, 33, 34, 35,

46, 47, 49, 50, 53, 55, 56 and 60 Respondent's Proposed Findings of Fact are

subordinate.

The facts contained in paragraph 22 and 28 of Respondent's Proposed

Findings of Fact were not shown by the evidence.

The facts contained in paragraph 64 of Respondent's Proposed Findings of

Fact are irrelevant.

COPIES FURNISHED:

R. W. Evans, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399-0504

Michael Webster, Esquire

12 Old Perry Road

Post Office Box 873

Shalimar, Florida 32579

Charles J. Brantley

Executive Director

Neil Kirkman Building

Room B-439

Tallahassee, Florida 32399-0500

Enoch Jon Whitney, Esquire

General Counsel

Neil Kirkman Building

Room B-439

Tallahassee, Florida 32399-0500

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

DIVISION OF FLORIDA HIGHWAY PATROL

DEPARTMENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES, DIVISION

OF FLORIDA HIGHWAY PATROL,

Petitioner,

vs. CASE NO.: 88-2315

B-LINE WRECKER SERVICE,

Respondent.

_____________________________/

FINAL ORDER

This matter came before the Department of Highway Safety and Motor Vehicles

for entry of a Final Order upon submission of a Recommended Order by Diane

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

Hearings. Except for the following substitutions and amendments, the

Recommended Order is adopted as the Department's Final Order in this matter:

1. Based upon a review of the complete record, the Department rejects the

following language in finding of fact 3 in that it is not supported by

competent, substantial evidence: "The business is considered by the Highway

Patrol to be one of the best wrecker services in that particular zone." The

Department substitutes the following language: "The Respondent answered 100

percent of its dispatch calls by the Florida Highway Patrol and its response may

be better than other wreckers. (TP 115-116)"

2. Based upon a review of the complete record, the Department rejects the

following language in finding of fact 8 in that it is not supported by

competent, substantial evidence: "However, due to the frequency of rotation

list calls Alert has probably taken such calls at some time since contracting

with B-Line in 1981. The Florida Highway Patrol would simply have been and

apparently was unable to detect the difference between the phone being answered

at Alert or at B-Line."

3. Based upon a review of the complete record, the Department rejects the

following language in finding of fact 9 in that it is not supported by

competent, substantial evidence: "However, Alert does not perform any duties

different from what a receptionist/dispatcher would perform if B-Line was to

hire its own receptionist." The Department substitutes the following language:

"A telephone operator for Alert has no knowledge of the wrecker operation, no

immediate responsibility to Barry Stephens, the owner of B-Line, and no

authority to act on behalf of B-Line in the event of a dispatch call from FHP."

(TP 167-168, 203-205)

4. Based upon a review of the complete record, the Department rejects the

following language in finding of fact 10 in that it is not supported by

competent, substantial evidence: "However, the evidence was unclear as to the

limits Mr. Carmody's definition would place on the employment practices of a

wrecker service in employing an independent contractor, such as Alert as

employed by B-Line. The evidence was clear that Mr. Stephens thought his use of

Alert as a dispatch service was legal. This evidence demonstrates that

reasonable people can differ on the meaning of the term 'answering service'

given the differences in the two services and the distinction between the two

services made by Alert which is in the business of various telephone services.

Upon this set of facts, a reasonable person could not anticipate that the term

'answering service' in the Rule would include a dispatch service." The

Department substitutes the following language: "Lt. Colonel Carmody's testimony

concerning the agency's interpretation of 'answering service' was uncontroverted

by any witness. According to Lt. Colonel Carmody, an answering service

prohibited by Rule 15B-9.003(8), F.A.C., means that someone other than an

employee of the wrecker service answers phone calls and relays messages to the

wrecker service. Such an answering service could not speak for the wrecker

service and give a commitment as to the equipment available, the response time,

or whether a wrecker could respond. (TP 138-139) This interpretation was never

contradicted by the Respondent at the hearing. Thus, the Department's

construction of its own rule is that an independent contractor engaged by the

wrecker operator to answer telephone calls and relay messages, without the

authority to act on behalf of the wrecker service, meets the definition of an

answering service and thus is forbidden by Rule 15B-9.003(8). Therefore, Alert

is an answering service under this rule. There is absolutely no evidence to

support the factual conclusion that Barry Stephens thought his use of Alert as a

dispatch service was legal."

5. Based upon a review of the complete record, the Department rejects

finding of fact 12 in its entirety in that it is not supported by competent,

substantial evidence. The Department substitutes the following finding of fact:

"The Department's interpretation of the definition of an answering service was

communicated by Lt. Colonel Carmody to Barry Stephens and other members of the

public. (TP 138-139)"

6. Based upon a review of the complete record, the Department rejects the

following language in finding of fact 19 in that it is not supported by

competent, substantial evidence: "The wrecker was not readily observable by

people at the accident scene. The Department substitutes the following finding

of fact: "The wrecker was visible to Mr. Buharp (TP 14), William Jones (TP 56),

Trooper Gross (TP 74-75), and George Van Dyke (TP 76, Petitioner's Exhibit 2)."

7. The Department rejects paragraph 21 in its entirety because this

factual conclusion is irrelevant to any determination as to whether or not the

Respondent committed a violation of Rule 15B-9.003(7), F.A.C.

8. The Agency rejects paragraph 22 in its entirety. The conclusion that

the definition is not one a reasonable person could glean from the rule intrudes

upon the policy making expertise reserved to the Agency. McDonald v. Department

of Banking and Finance, 346 So.2d 569 (Fla. 1st DOA 1977). In addition, the

reasonableness of the Agency's policy is not an issue in this case.

In addition, based upon a review of the complete record, the Department

rejects paragraph 22 as not being supported by competent, substantial evidence.

Lt. Colonel Carmody testified that an "accident scene" for the purpose of the

rule means the vicinity of an accident where the wrecker, by its presence, would

have an unfair advantage or would be actually in the vicinity to be viewed or

misinterpreted by the public as a wrecker dispatched by the Florida Highway

Patrol. (TP 146) This testimony was never contradicted by the Respondent and

the Department finds that this is the proper definition of "accident scene" as

used in the rule.

Also, the Department finds that Rule 15B-9.003(7), prohibits operators from

responding to an accident without request from a law enforcement agency. A

driver is a wrecker operator pursuant to Rule 15B-9.002. B-Line violated Rule

15B-9.003(7), when its drivers physically appeared at the accident scene. In

view of the express wording of Rule 15B-9.003(7), the Department was not

required to show that the Respondent's drivers responded to the accident for the

purpose of towing vehicles.

9. The Department rejects the following in finding 23: "Chapter 15B-9,

Florida Administrative Code, therefore, by its own terms does not apply to Mr.

Griffin and his actions do not constitute violations of the provisions of

Chapter 15B-9, Florida Administrative Code." Though denominated a finding of

fact, this statement is actually a conclusion of law which is an erroneous

interpretation of the Agency's rule. Rule 15B-9.002(2), defines an operator or

wrecker operator to be an individual, partnership, corporation or business

entity engaged for hire in recovery, towing, or removal of wrecked, disabled,

stolen, or abandoned motor vehicles. This rule further provides that a hired

driver or employee shall be governed by these rules while on duty, and unless

otherwise stated, shall be considered an agent of the wrecker operator. Thus,

the rule clearly provides that a violation may occur if an employee acts as an

agent of the wrecker operator, even though the employee is "off-duty."

The competent, substantial evidence shows, and the Department finds, that

Barry Stephens, owner of B-Line Wrecker Service, established a policy for the

Respondent which encouraged its drivers to respond to an accident without

dispatch or call by the Florida Highway Patrol. Ken Griffin, who responded to

the accident in Shalimar on February 14 in a B-Line wrecker with emergency

lights on and who remained at the accident scene even though his services were

not required, appeared on behalf of B-Line Wrecker Service. Griffin advised Mr.

Buharp that he could tow the vehicle if Buharp requested B-Line Wrecker Service.

(TP 217) Griffin did not tell Buharp that B-Line Wrecker Service could not

under any circumstances Low that vehicle. In view of these facts, and, the

aforestated policy of B-Line enunciated by Barry Stephens, the Department finds

that Ken Griffin appeared at the accident as an agent of the Respondents.

The authority of an agent may be defined

as his power to affect legal relations

of the principal by acts done in

accordance with the principal's

manifestation of consent to him, and,

unless otherwise agreed upon, the

agent's authority includes only

authority to act for the benefit of the

principal. Such authority may be real

or actual authority conferred in fact by

the principal or it may be apparent or

ostensible authority arising when the

principal allows or causes others to

believe the agent possesses such

authority, and the public may rely on

either unless in the case of apparent

authority, the circumstances are such as

to put one on inquiry. Actual authority

is such as a principal intentionally

confers upon the agent or intentionally

or by want of care allows the agent to

believe himself to possess; and it may

be either expressed or implied. Express

or actual authority may also be written

or oral. 2 Fla.Jur.2d, Agency and

Employment, Section 25.

In the present case, Ken Griffin possessed actual, express authority from Barry

Stephens to appear at the scene of an accident and to tow a vehicle if

requested. (TP 163) Nathaniel Buharp relied upon Griffin's apparent authority

to tow the vehicle because Barry Stephens allowed members of the public to

believe that Griffin responded to the scene on behalf of B-Line. Griffin,

therefore, acted as an agent of the Respondent by appearing at the accident

scene. Therefore, the Department finds that through Griffin, the Respondent

violated Rule 15B-9.003(7).

10. Based upon a review of the complete record, the Department rejects the

following language from finding of fact 24 in that it is not supported by

competent, substantial evidence: "He was not responding to the accident as a

tow truck driver. The wrecker was not parked at the accident scene. Therefore,

no violations of Chapter 15B-9, Florida Administrative Code, occurred by Mr.

Kline's actions." As the hearing officer determined in Finding of Fact #20,

Paul Kline was on duty with B-Line Wrecker Service on February 14, 1988.

Therefore, he could only appear at the scene as a driver for B-Line. By his

presence at the accident scene, after leaving the wrecker, Kline obviously

responded to the accident as a wrecker operator. See paragraph 8 and 9, above.

Further, Kline's wrecker was visible from the accident scene. See

paragraph 6, above. Accordingly, the Respondent, through the actions of Paul

Kline, committed a violation of Rule 15B-9.003(7).

11. Based upon a review of the complete record, the Department rejects

finding of fact 25 in its entirety in that it is not supported by competent,

substantial evidence. The Department substitutes the following finding of fact:

"Barry Stephens instructed his drivers to stop at accident scenes without

dispatch by the Florida Highway Patrol. (TP 163)"

12. Based upon a review of the complete record, the Department rejects the

following language from finding of fact 26 in that it is not supported by

competent, substantial evidence: "None of Mr. Stephens (sic) policies support a

finding that B-Line has violated any of the provisions of Rule 15B-9, Florida

Administrative Code." The Department substitutes the following finding of fact:

"By appearing at the accident scene without dispatch by the Florida Highway

Patrol, the Respondent's wreckers violated Rule 15B-9.003(7). Stephens' policy

encouraged his drivers, rather than the Florida Highway Patrol to determine

whether a wrecker was needed or not. (TP 163) The problems with such a policy

was explained by Trooper Gross, Lt. Farrior, and Lt. Colonel Carmody at the

hearing. (TP 77-78, 109-110, 144-145)"

13. The Department makes the following additional finding of fact:

"Griffin was actually present at the scene of the accident; Griffin could have

towed the vehicle upon request by Mr. Buharp; Griffin never told Mr. Buharp that

his wrecker was unavailable; B-Line would have profited from towing and storage

of the vehicle if requested. (TP 163-164, 215-216)"

14. The Department rejects Conclusion of Law number 3 because the hearing

officer has misinterpreted Rule 15B-9.002(2), Florida Administrative Code, by

limiting the scope of the rules to actions of a driver or an employee while on

duty. The Department substitutes the following Conclusion of Law: "Rule 15B-

9.002(2), Florida Administrative Code, specifically provides that a hired driver

or employee shall be governed by these rules while on duty and unless otherwise

stated, shall be considered an agents of the wrecker operator. Thus, regardless

of whether a driver or employee is on duty or off duty, the rule clearly intends

that the wrecker service be bound by the actions of its drivers. Thus, by

responding to the accident scene pursuant to the actual or implied authority of

Barry Stephens, Ken Griffin was acting as an agent of the Respondent

notwithstanding the fact that he was not scheduled to work on February 14,

1988."

15. The Department rejects Conclusion of Law number 4. There is no

showing that the Department's interpretation is clearly erroneous. See Cohen on

behalf of Cohen v. School Board, 457 So.2d 1238 (Fla. 3rd DCA 1984). Also, the

interpretation of the Department's rule is a policy consideration for which the

agency, rather than the hearing officer, has particular responsibility.

McDonald v. Department of Banking and Finance, supra. Finally, the

reasonableness of the Department's interpretation of "answering service" is not

an issue in this case. Therefore, the Department substitutes the following

Conclusion of Law: "B-Line's use of Alert Answering Service was a violation of

Rule 15B-9.003(8), Florida Administrative Code."

16. The Agency rejects Conclusion of Law number 5, with respect to

violations of Rule 15B-9.003(7) and substitutes the following conclusion of law:

"The record demonstrates unequivocally that two wreckers operated by employees

of B-Line responded to the accident on February 14, 1988. (TP 205-209, 223-226)

These wrecker operators appeared at the accident notwithstanding prior warnings

by the Florida Highway Patrol to the Respondent that appearance at the scene

without request by the Florida Highway Patrol was a violation of the rule. (TP

161-162) Further, Paul Kline, a "wrecker operator" pursuant to Rule 15B-9.002,

was physically present at the scene of the accident when he left his wrecker.

(TP 224-226) Thus, by Kline's presence at the scene, the Respondent committed a

violation of Rule 15B-9.003(7)."

17. Any language in the Findings of Fact or Conclusions of Law of the

Recommended as adopted herein, which are inconsistent with any provisions of

this Final Order, are hereby rejected.

Based upon the foregoing, it

ORDERED that Respondent B-Line Wrecker Service shall forthwith be suspended

from the Department's wrecker rotation list for a period of 30 days.

DONE AND ORDERED this 19th day of April, 1989.

_______________________________

BOBBY R. BURKETT, Director

Florida Highway Patrol

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399

I hereby certify that the original has been filed in the official records of the

Division of Florida Highway Patrol this 19th day of April, 1989.

COPIES FURNISHED:

R. W. Evans

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Rm. A-432

Tallahassee, Florida 32399-0504

Michael Webster, Esquire

12 Old Ferry Road

Post Office Box 873

Shalimar, Florida 32579

Diane Cleavinger

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

Tallahassee, Florida 32399-1550