95-004371RU H. B. Walker, Inc. vs. Department Of Transportation Status: Closed DOAH Final Order on Monday, November 4, 1996.

Summary: Written and unwritten statements that paraphrase rules are not rules. Challenged rules have been amended making the challenge moot.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

H. B. WALKER, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-4371RU

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

__________________________________)

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4951

)

H. B. WALKER, INC., )

)

Respondent. )

__________________________________)

FINAL ORDER

(CASE NO. 95-4371RU)

Pursuant to notice, the Division of Administrative Hearings, by its duly-

designated Administrative Law Judge, Mary Clark, held a formal hearing in the

above-styled consolidated cases on July 17, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Thomas V. Infantino, Esquire

INFANTINO AND BERMAN

180 South Knowles Avenue, Suite 7

Post Office Drawer 30

Winter Park, Florida 32790

For Respondent: Paul Sexton

Chief, Administrative Law

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern H. B. Walker's

challenge to the validity of certain Department of Transportation (DOT) rules

and certain DOT statements that H. B. Walker contends are un-promulgated rules.

In its original petition and in a supplemental challenge filed on September

29, 1995 (styled "Supplement to H. B. Walker, Inc.'s Response to Respondent's

Motion to Dismiss/For More Definite Statement"), H. B. Walker challenged

existing rules 14A-1.004, 14A-1.007, 14-87.002 and 14-87.011(1), Florida

Administrative Code. H. B. Walker also challenged these written and verbal

statements as un-promulgated rules:

(1) Chapter 18 of the DOT Motor Carrier

Compliance Operations Manual;

(2) Statements by Colonel Jack McPherson

regarding the authority to impound a motor

vehicle for nonpayment of penalties; and

(3) Statements by Captain E. A. Brown

that a DOT Safety Report and Field Receipt

is a lien document, effective immediately

when issued at the conclusion of a terminal

audit.

More specifically, H. B. Walker contends that the DOT has no authority to

require a motor carrier to pay a penalty, post a bond or surrender a vehicle to

impoundment prior to hearing and final agency action when the motor carrier

protests record-keeping violations alleged after a terminal audit by the agency.

Rules, promulgated and un-promulgated, which provide that summary procedure, are

invalid according to H. B. Walker's petition and supplemental filing.

DOT contends that the issue is moot as the result of rule amendments and

that the challenged statements are not rules, or they merely reflect provisions

of existing rules.

PRELIMINARY STATEMENT

In response to a terminal audit, assessment of a $4,000 fine and subsequent

impoundment of Walker's vehicle by the Department of Transportation (DOT),

Walker filed a petition with the Division of Administrative Hearings (DOAH) on

September 1, 1995, pursuant to Sections 120.535, 120.56 and 120.57, Florida

Statutes, challenging certain DOT rules.

On September 25, 1995, Walker filed with the DOT a request for formal

hearing, pursuant to Section 120.57(1), Florida Statutes, in response to a

written decision of the Commercial Motor Vehicle Review Board upholding the

findings of record-keeping violations and the $4,000 civil penalty.

After the latter petition was forwarded to DOAH, and at the request of the

parties, both cases were consolidated for consideration in a single evidentiary

hearing. By necessity, two orders: one recommended, one final, are being

issued.

At the commencement of the hearing, after argument by counsel, the

Administrative Law Judge granted Walker's Motion to Realign Parties in Case No.

95-4951. In so ruling, the Judge determined that DOT has the burden of proving

that the alleged violations occurred and that the proposed penalty is

appropriate.

The following witnesses were presented by DOT at hearing: Officer Terron

R. Lindsey, Captain E. A. Brown, Lieutenant Colonel Robert W. Ball, and Elyse

Kennedy. Fifteen (15) exhibits, marked DOT or Petitioner's Exhibit Numbers 1-

15, were received into evidence, including Exhibit Number 9, a deposition of

Joseph Warren.

Herb Walker testified on behalf of Walker. Respondent Walker's Exhibit

Numbers 1-11 were received into evidence, including Exhibit Numbers 8, 9 and 10,

which are depositions of E. A. Brown, Luis Phelps and Terron Lindsey. A

deposition of John Valois was marked and received into evidence as "Joint

Exhibit Number One".

At the request of the parties and as reflected on the record, the

Administrative Law Judge took official recognition of a series of federal and

state regulations. These include the federal regulations (1993 and 1994

versions of 49 CFR, Parts 390, 391 and 396) filed on October 7, 1996.

A transcript was prepared and was filed on September 6, 1996. Thereafter,

the parties filed Proposed Final Orders and Proposed Recommended Orders,

according to a schedule agreed upon by the parties and extended to October 18,

1996, with the consent of the Administrative Law Judge.

FINDINGS OF FACT

The Parties

1. H. B. Walker, Inc. is in the business of demolition, excavation and

land clearing. The company transports heavy equipment to and from job sites and

transports debris from job sites and is a commercial motor carrier. The company

maintains a terminal for its motor vehicles at 1913 Bruton Boulevard, Orlando,

Florida.

2. All commercial motor carriers operating over the public highways in

Florida are subject to certain federal regulations governing driver and vehicle

safety and record-keeping. Those federal regulations are adopted by reference

in the Florida Statutes, which statutes are amended from time to time to address

a later version of the federal regulations.

3. The DOT has the authority and responsibility to enforce those safety

and record-keeping requirements, which it does, in part, through terminal

audits, sometimes called "compliance reviews".

The Process

4. On April 18, 1995, after conferring with his supervisor, Officer Terron

Lindsey, a seasoned agency motor carrier compliance officer, visited H. B.

Walker's terminal and conducted a review of Walker's records. As a result of

the review, Officer Lindsey found multiple violations of the record-keeping

requirements of 49 CFR, parts 391 and 396. He advised Walker's personnel that

he would return in 60 - 90 days and no penalty would be imposed if the

violations were corrected.

5. On a follow-up audit on July 12 and 13, 1995, Officer Lindsey found

that some, but not all corrections were made. On August 1, 1995, the agency

issued to H. B. Walker a Safety Report and Field Receipt stating the violations

and citations to the federal rules and assessing penalties in the total amount

of $4,000. Officer Lindsey delivered the Safety Report and Field Receipt to

Walker's terminal and was told that the penalty would not be paid.

6. Walker did not pay the $4,000, but protested the agency's findings to

the Commercial Motor Carrier Board (Board). By 1995 the DOT had some brief

experience with conducting terminal audits and assessing penalties for record-

keeping violations, but this was the first time that a motor carrier had refused

to pay the penalty prior to presenting its protest to the Board.

7. Captain E. A. Brown, Officer Lindsey's supervisor, called the

Tallahassee headquarters of DOT's motor carrier compliance office and the DOT's

legal office to find out how to proceed. As motor carriers are aware, DOT

exercises authority in road-side safety inspections to require immediate payment

of any penalty or to impound the vehicle when a compliance officer issues a

citation.

8. Based on DOT's existing rules, Chapter 18 of the Motor Carrier

Compliance Manual and experience with road-side safety enforcement, Colonel

McPherson advised Captain Brown that the agency had authority to impound an H.

B. Walker vehicle.

9. After receiving directions from his headquarters, Captain Brown wrote

letters to H. B. Walker and orally informed Walker's employee, John Valois, that

if the penalty were not paid, a vehicle would be held, consistent with past

enforcement actions on non-payment of penalties.

10. On August 28, 1995, at the direction of Captain Brown, Officer Rick

Hunter detained one of Walker's vehicles and impounded it at a DOT maintenance

yard.

11. In the meantime, after the Board received H. B. Walker's request for a

hearing on the violations, the Board's Executive Secretary, Elyse Kennedy,

telephoned Walker's counsel and told him that the Board could not hear his case

until the penalties were paid, or a bond was posted. Later, after confirming

with DOT legal staff, Ms. Kennedy sent a letter advising Walker's counsel that

the Board could schedule and hear the case, as the impoundment of a vehicle was

equivalent to payment of the penalties or the bond.

12. H. B. Walker's case was scheduled with consultation with Walker's

attorney. On the appointed date, when no representative from H. B. Walker

appeared, the Board considered written material submitted by Walker's attorney

and testimony from Officer Lindsey.

13. The Board notified H. B. Walker of its denial of relief in a letter

dated September 15, 199[5]. The letter states in pertinent part:

Dear Sir:

Pursuant to Section 316.545, Florida

Statutes, the Commercial Motor Vehicle

Review Board at its meeting of July 13,

199[5], carefully reviewed all of the

information placed before it and determined

that a refund was not appropriate in this

case for the following reason.

After hearing testimony of Officer Lindsey

and Captain E. A. Brown, the Board felt that

H. B. Walker, Inc. was not in compliance

with CFR 391.51; CFR 391.43; CFR 391.103 and

CFR 396.3.

Pursuant to Rule 14A-1.012, Florida

Administrative Code, you are entitled to

request a rehearing in this matter by filing

such a request with the Executive Secretary

within ten (10) days of the receipt of this

letter.

Pursuant to Chapter 120, Florida Statutes,

you have the right to either a formal or an

informal hearing. A formal hearing will be

granted where disputed issues of material

fact exist; in other words, where you

disagree with the specific facts contained

in this letter upon which the Commercial

Motor Vehicle Review Board bases its intent

to deny your request for refund. All

requests for either type of hearing must be

in writing.

* * *

You are hereby notified that the conclusion

contained in this letter shall become final

with 21 days of receipt of this letter,

unless, you file a written request for an

informal or formal Administrative hearing

pursuant to Section 120.57, Florida Statutes,

with the Clerk of Agency Proceedings within

21 days.

* * *

Walker's timely request for a formal hearing tolled the Board's conclusion.

The 1995 Rules

14. In 1995, at the time of the H. B. Walker terminal audit and ensuing

Board meeting, rules 14A-1.004 and 14A-1.007, Florida Administrative Code,

provided, in pertinent part:

14A-1.004 Meetings

. . . Only penalties which have been paid

or for which a Section 316.545 bond has

been posted, will be considered by the

Review Board.

14A-1.007 Timely Written

Request for Meeting

Any person who is aggrieved by the imposition

of a civil penalty imposed upon the provisions

of section 316.545 or 316.3025, Florida

Statutes, after payment of the penalty, or

posting a section 316.545, Florida Statutes,

bond may request consideration by the Review

Board by notifying the Review Board office in

writing within 60 days of the date of the

penalty notice (Load and Field Receipt Date)

that the penalty is being protested and a

Review Board consideration is requested . . . .

15. At the relevant period, rules 14-87.011(1) and 14-87.002 provided, in

pertinent part:

14-87.011 Definitions

* * *

(1) "Citation" means:

(a) A Load Report and Field Receipt

issued to the owner or driver of a commercial

motor vehicle for violation of weight and

vehicle registration laws: or

(b) A Safety Report and Field Receipt

issued to the owner or driver of a commercial

motor vehicle for violation of safety laws

and regulations and permit violations; or

(c) The penalty portion of an I. R. P.

Trip Permit & Temporary Fuel Use Permit

issued to the owner or driver of a commercial

motor vehicle in violation of the fuel use

tax requirements contained in Chapter 207,

Florida Statutes.

14-87.002 Penalties and Fees Due

Penalties and fees imposed upon the

operations of commercial motor vehicles are

due and payable upon the issuance of a

citation or a permit. . .

The 1996 Amendments

16. On June 7, 1996, DOT published notices of rule-making, proposing to

amend various provisions of rule chapters 14-87, 14-108 and 14A-1. On July 16,

1996, the agency filed the amendments to Chapter 14A-1 for adoption, and those

amendments became effective August 5, 1996. The amendments to Chapters 14-87

and 14-108, Florida Administrative Code, became effective in September 1996.

17. The cumulative effect of these amendments is to distinguish between

the penalty process for road violations and the process for violations found

during a terminal audit/compliance review. The amendments provide that a

commercial motor carrier who has been assessed penalties for violations found

during a terminal audit may obtain a Review Board hearing prior to payment or

posting a bond. The amendments also distinguish between a "notice of non-

compliance" issued after a terminal audit to advise the carrier of violations

and the penalties that will be assessed if the violations are not corrected, and

a "notice of violation" which identifies the violations and assesses penalties.

18. DOT's amendments to chapter 14-87, Florida Administrative Code, are,

in relevant part, as follows: (Underlined material has been added, material

struck through has been deleted.)

14-87.0011 Definitions

* * *

(4) "Penalty" means a monetary amount

prescribed by statute or Department rule

as a civil penalty to be assessed

administratively for a violation of a

commercial motor vehicle law pursuant to

the issuance of a citation or a notice of

violation.

* * *

(9) "Notice of Violation" means a notice

of violation as defined by Rule 14-108.002(5).

* * *

14-87.002 Penalties and Fees Due; Detaining

and Impounding Motor Vehicles When Citation

or Permit Issued

(1) Penalties and fees imposed upon the

operations of commercial motor vehicles are

due and payable upon the issuance of a

citation or a permit. Penalties due under

chapter 14-108 are due in accordance rule

14-108.004. All penalties and fees not

guaranteed by a Surety Bond must be paid to

the officer or inspector issuing the

citation or permit or detaining the vehicle

for nonpayment of penalties prescribed under

rule 14-108.005 prior to further operation

of the affected commercial motor vehicle on

the roads of this State. Payment may be in

cash, by cashier's check or by money order.

In the event that payment is not made when

payment is due, the motor vehicle will be

impounded in accordance with sections

316.3025 or 316.545, Florida Statutes.

(2) When a Surety Bond has been properly

filed and accepted by the Department, the

vehicle will be released upon presenting

written evidence of the surety bond to the

officer or inspector detaining the vehicle

the citation or permit will be issued to the

owner or driver of the vehicle, and payment

must be remitted to the officer or inspector

who issued the citation or permit within ten

working days of the release of the vehicle

date of issuance. Company checks may be

accepted when a proper Surety Bond is on

file. In the event that payment is not made

within ten working days of release of the

vehicle, the Department will take action to

recover the penalty amount from the surety bond.

(3) Motor vehicles impounded in accordance

with this rule will be released upon payment

of the penalty or the posting of a bond

pursuant to Section 316.545, Florida Statutes,

or upon a determination by the Commercial

Motor Carrier Review Board to cancel or

revoke the penalty or upon the issuance of a

Department order setting aside the penalty

as the result of a proceeding held pursuant

to section 120.57, Florida Statutes. Motor

vehicles released as a result of the posting

of a bond under section 316.545, Florida

Statutes, remain subject to the lien imposed

by that statute.

19. The Department's amendments to chapter 14-108, Florida Administrative

Code, are, in relevant part, as follows:

14-108.002 Definitions

* * *

(4) "Notice of Noncompliance" means a

notice issued to a motor carrier that

advises the motor carrier of violations

found during a terminal audit/compliance

review and identifies the penalties that

will be assessed if the violations are not

corrected within 60 days of receipt of

the notice.

(5) "Notice of Violation" means a written

notice which identifies violations of safety

laws and regulations found during the conduct

of a terminal audit/compliance review and

assesses penalties pursuant to these rules.

Such a notice will be issued after violations

are found and penalties are to be assessed

under this Chapter.

(6) (5) "Penalty" means a monetary amount

prescribed by statute as a civil penalty to

be assessed administratively for violation(s)

of safety laws and regulations found during

the conduct of a terminal audit/compliance

review.

(7) (6) "Terminal Audit" or "Compliance

Review" means an onsite investigation at a

motor carrier's terminal or office of

property carrier or passenger carrier

records such a driver's hours of service,

maintenance and inspection, driver

qualification, commercial drivers license

requirements, financial responsibility,

accidents and other safety and business

records to determine compliance with the

safety laws and regulation. The investiga-

tion will compliance review may result in

the initiation of an enforcement action to

include the assessment of the applicable

penalty(ies) prescribed by statute and this

rule chapter.

14-108.003 Applicability; Compliance Required

* * *

(2) Any person or motor carrier who

operates or causes or permits nonpublic-

sector buses to be operated on any road,

street, or highway open to travel by the

public in the transportation of passengers

shall be in compliance with the applicable

safety laws and regulations contained in

section 316.70, Florida Statutes, and Title

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

397 301, 393, 394 and 396. Any person or

motor carrier found to be in violation of

these rules during the conduct of a terminal

audit or compliance review shall be subject

to the penalties herein described.

(3) The penalties prescribed by rule

14-108.105 will be waived and a notice of

violation will not be issued if, as a result

of the first terminal audit or compliance

review conducted of a Motor Carrier, the

Motor Carrier corrects the described

violations within 60 days after receipt of

a written notice of noncompliance.

Penalties for the following violations will

not be waived under the above provision,

even if they are found during the first

terminal audit or compliance review and are

corrected immediately.

(a) Failure to comply with controlled

substance testing requirements

(b) Exceeding driver hours of service.

(c) Violations involving hazardous

materials.

(d) Lack of valid commercial driver's

licenses, including revoked, suspended or

cancelled licenses.

14-108.004 Administration: Enforcement.

(1) All penalties imposed and collected

in accordance with these rules shall be

paid to the treasurer, who shall credit the

total amount collected to the State Trans-

portation Trust Fund in accordance with

section 316.3025(5)(b), Florida Statutes.

Penalties assessed as a result of a terminal

audit are due and shall be paid no later

than ten working days after receipt of the

notice of violation, unless a timely appli-

cation is made to the Commercial Motor

Vehicle Review Board under rule 14A-1.007,

in which case the penalty (or the remaining

part thereof) is due and shall be paid no

later than ten working days after receipt

of a written decision by the Review Board

sustaining the penalty in whole or in part.

(2) Whenever any person or motor carrier

violates the provisions of these rules and

becomes indebted to the State because of

such violation(s) and refuses to pay the

appropriate penalty, the penalty becomes a

lien upon the property including the motor

vehicles of such person or motor carrier and

may be foreclosed by the State in a civil

action in any court of this state as

prescribed by section 316.3025(4), Florida

Statutes. Motor vehicles of the person or

motor carrier will be detained and impounded

for nonpayment in accordance with

Rule 14-87.002.

20. The adopted amendments to Chapter 14A-1, Florida Administrative Code,

are, in relevant part, as follows:

14A-1.004 Meetings

The Review Board shall sit as an admin-

istrative body in equity to consider

testimony or written documents in mitigation,

extenuation, modification, cancellation,

revocation, or maintenance of any penalty or

penalties imposed pursuant to 316.540,

316.545, or 316.3025, Florida Statutes.

Only penalties which have been paid or for

which a section 316.545 bond has been posted,

will be considered by the Review Board.

However, this provision shall not prevent

the owner of a motor vehicle that has been

impounded for nonpayment from receiving a

Review Board hearing. Further, as provided

in Rule 14-108.004, a motor carrier may

obtain a Review Board hearing on penalties

assessed as a result of a terminal audit

prior to payment or posting of a bond.

(1) Review Board meetings may be scheduled

as often as determined necessary, based on a

sufficient number of penalties being avail-

able for review to justify the expense of

hold a meeting. The Review Board shall meet

not less than six times per year. Location

of meetings shall be determined by the

Review Board. Upon timely written request,

cases involving Florida based persons will

be scheduled at the next meeting held in

their geographic area. However, cases

involving requests for Review Board conside-

ration of unpaid penalties imposed for

violations found during a terminal audit

will be scheduled for the next meeting

regardless of location. Upon timely written

request, cases involving non-Florida based

persons will be scheduled at the next meeting

of the Review Board. Persons may request the

scheduling of their case at a specific city

at which the Review Board meets. Such

requests must be in writing to the Commercial

Motor Vehicle Review Board, Haydon Burns

Building, 605 Suwannee Street, Tallahassee,

Florida 32399-0450.

* * *

14A-1.007 Timely Written Request for Meeting

Any person who is aggrieved by the imposition

of a civil penalty imposed upon the pro-

visions of Section 316.545 or 316.3025,

Florida Statutes upon compliance with Rule

14A-1.004, after payment of the penalty, or

posting a Section 316.545, Florida Statutes,

bond may request consideration by the Review

Board by notifying the Review Board office

in writing within 60 days of the date of the

Penalty Notice (Load and Field Receipt Date)

that the penalty is being protested and a

Review Board consideration is requested.

The request shall set forth in detail the

basis of the protest and all matters to be

considered so that the Review Board can be

prepared to discuss the issue at the meeting

if the protestor does not appear. The

request must be received within 60 days. A

written request for Review Board consideration

of a penalty imposed for violations found

during a terminal audit must be submitted and

received within ten working days after receipt

of the notice of violation in order to be

considered timely and such written request

must be submitted via hand-delivery or

certified mail.

14A-1.008 Appearances

Those persons, firms or corporations who

have been assessed a penalty for violations

of Section 316.540, 316.545, or 316.3025,

Florida Statutes, and have complied with the

requirements of Rules 14A-1.004 and

14A-1.007 either have paid the penalty or

posted a Section 316.545, Florida Statutes,

bond shall appear in person, through an

authorized representative or by legal counsel.

Each person shall be given ample time to

explain the reasons for seeking relief. The

Review Board, at its discretion, may inquire

into any testimony presented at the meeting

or written statements presented. Testimony

also may be received from the agency that

imposed the penalty.

21. Although Mr. Walker testified that he never received notice of rule-

making to amend Chapter 14A-1, Florida Administrative Code, he did not present

evidence that he requested notice. Nor did he argue that the amendments were

otherwise invalid.

Chapter 18, Motor Carrier Compliance Operations Manual

22. As stated in its first paragraph, Chapter 18, "Collection of Civil

Penalties", within the Motor Carrier Compliance Operations Manual, the purpose

of Chapter 18 is,

to establish a uniform procedure for the

collection of overweight penalties and other

commercial vehicle penalties assessed

pursuant to Florida Statutes and,

Department Rules. (DOT Exhibit Number13)

23. Like the rules of DOT in 1995, the Chapter 18 procedures provided for

immediate collection of a penalty, or posting a bond or impoundment of a vehicle

at the time enforcement action is taken. Although agency personnel invoked

Chapter 18 as part of their basis for seeking immediate payment by H. B. Walker,

the provisions of the Chapter nowhere specifically mention penalties assessed as

the result of terminal audits.

24. On April 15, 1996, the agency issued Enforcement Bulletin 18-001, to

be inserted in Chapter 18 describing procedures for imposition and collection of

civil penalties associated with terminal audits. Those procedures are the same

as the procedures described in the rule amendments addressed in paragraphs 18

through 20, above.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has jurisdiction in this

proceeding pursuant to sections 120.535, and 120.56, Florida Statutes (1995) 1/

.

26. Section 120.535, Florida Statutes (1995) requires that agency

statements defined as a rule must be adopted by section 120.54 rule-making

procedures as soon as feasible and practicable. Persons substantially affected

by an agency statement may file a petition seeking an administrative

determination that the agency statement violates this requirement.

27. Section 120.56, Florida Statutes (1995) provides that any person

substantially affected by a rule may seek an administrative determination of the

invalidity of the rule on the ground that the rule is an invalid exercise of

delegated legislative authority.

28. H. B. Walker has challenged both existing rules and statements which

he contends are rules. There is no dispute that Walker is "substantially

affected" by the rules and statements at issue; those rules and statements were

the basis for the assessment of a civil penalty and impoundment of a Walker

vehicle.

29. Section 120.535, Florida Statutes (1995) is the exclusive mechanism

for challenging an agency's failure to promulgate rules. Christo v. State

Department of Banking and Finance, 649 So 2d 318 (Fla 1st DCA 1995). The

threshold issue under section 120.535 is whether the un-promulgated statement is

a "rule".

30. A "rule", as defined in section 120.52(16), is an agency statement of

general applicability that implements, interprets, or prescribes law or policy.

An agency statement is a rule if it purports

in and of itself to create certain rights

and adversely affect others, or serves by

its own effect to create rights, or to require

compliance, or otherwise to have the direct

and consistent effect of law.

Balsam v. Department of Health

and Rehabilitative Services,

452 So 2d 976, 977-78

(Fla 1st DCA 1984)

The "Un-promulgated Rules"

31. The statements by Colonel McPherson and Captain Brown regarding

authority to impound a vehicle for failure of a motor carrier to immediately pay

a penalty imposed after a terminal audit plainly applied to H. B. Walker's case

and affected his rights. However, the record fails to establish that these

statements had general applicability or were any more than an ad hoc

interpretation of agency policy that had never before been applied to

circumstances similar to Walker's. Walker's was the first case, and possibly

the only case to which the policy was applied, since during the pendency of

Walker's proceeding the agency promulgated rules which specifically address the

assessment of penalties for violations found in terminal audits.

32. Chapter 18 of the Motor Carrier Compliance Office Procedures Manual,

by its stated purpose to create "a uniform procedure" (see paragraph 22, above)

would meet the definition of a rule. Department of Transportation v. Blackhawk

Quarry Company of Florida, Incorporated, 528 So 2d 447 (Fla 5th DCA 1988),

review denied, 536 So 2d 243. But the procedures in Chapter 18 are no more than

re-statement of procedures found in promulgated rules, which procedures (in the

rules and in the manual) did not, until the 1996 amendments, specifically

address the assessment of penalties after a terminal audit. As found above, the

promulgated rules, as well as Chapter 18, have been amended to describe

procedures for collecting those penalties. Chapter 18, as amended, adds nothing

to those procedures and does not, therefore, meet the Balsam standard for a

rule.

33. Assuming, however, that the statements and Chapter 18 would meet the

definition of a rule, the agency is entitled to several defenses for its failure

to formally adopt the statements and Chapter 18, pursuant to rule-making

procedures mandated in section 120.54, Florida Statutes.

34. Rule-making is required by section 120.535(1)"...as soon as feasible

and practicable." Rule-making is presumed feasible unless the agency proves

that:

1. The agency has not had sufficient time

to acquire the knowledge and experience

reasonably necessary to address a statement

by rule-making; or

2. Related matters are not sufficiently

resolved to enable the agency to address a

statement by rule-making; or

3. The agency is currently using the rule-

making procedure expeditiously and in good

faith to adopt rules which address the

statement.

Section 120.535(1)(a), Florida Statutes

(1995).

35. At the time that the agency applied its statements and Chapter 18 to

H. B. Walker, it had little experience with the assessment of penalties after a

terminal audit. During the pendancy of Walker's case, the agency appropriately

examined its policy, altered it, and promulgated the new policy in the form of

the rule amendments which are cited in paragraphs 16 through 20, above.

36. The agency statements at issue and Chapter 18 do not violate section

120.535(1), Florida Statutes (1995).

The Promulgated Rules

37. Existing rules may be determined invalid on the ground that the rules

are an invalid exercise of delegated legislative authority. Section 120.56(1),

Florida Statutes (1995). Walker contends that rules 14A-1.004, 14A-1.007, 14-

87.002 and 14-87.011(1), Florida Administrative Code, exceed the agency's grant

of rule-making authority and enlarge, modify or contravene the specific

provisions of law implemented. See, definition of "invalid exercise of

delegated legislative authority" at 120.52(8), Florida Statutes (1995).

38. Specifically, Walker argues that none of the laws cited as authority

for the rules or cited as laws implemented for the rules require, or provide

for, the posting of a bond or payment of a penalty prior to a motor carrier's

seeking and obtaining Commercial Motor Vehicle Review Board review of a penalty

imposed after a terminal audit 2/ .

39. It is immaterial whether Walker is correct. The rules at issue have

been amended and no longer require pre-payment of the penalty or posting a bond

prior to timely-requested review by the Commercial Motor Vehicle Review Board.

For this reason, Walker's challenge to the promulgated rules is moot 3/ .

ORDER

Based upon the foregoing, the petition by H. B. Walker, Inc. in case number

95-4371RU is DISMISSED.

DONE AND ORDERED this 4th day of November, 1996, in Tallahassee, Florida.

___________________________________

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of November, 1996.

ENDNOTES

1/ Chapter 120 was substantially amended in 1996, effective October 1, 1996, to

create substantive changes and to renumber certain sections. This case arose

and was heard prior to the effective date of the changes. None of the changes

would have affected the outcome here.

2/ Walker's characterization of the underlying statutes is correct. They do

not specifically address immediate liability for a penalty after a terminal

audit reveals violations. There is, however, as argued by the agency in its

proposed final order, some indication of legislative intent that penalties for

road-side violations be assessed immediately, with the right of the aggrieved

person to have the penalty modified, cancelled or revoked by the Commercial

Motor Vehicle Review Board. See sections 316.3025, Florida Statutes and

316.545, Florida Statutes. The agency, in its proposed order, describes the

legislative history of these provisions, which history pre-dates the authority

of the agency to conduct terminal audits.

3/ Walker might contend that the challenge to out-dated rules is not moot since

his vehicle was impounded under the agency's application of those rules. There

is some authority for the proposition that a challenge to an expired or

superceded rule is still appropriate where the challenger has been the subject

of enforcement actions pursuant to that rule. Witmer v. Department of Business

and Professional Regulation, DOAH Case Number 93-6549RX (Final Order February 4,

1994), reversed on other grounds in Witmer v. Department of Business and

Professional Regulation, 20 FLW D2382 (Fla 4th DCA October 25, 1995). Walker's

circumstances are distinguished, however, from Mr. Witmer's as Walker's rule

challenges relate to the procedure for collecting a penalty and not to

substantive enforcement. The Administrative Law Judge has no jurisdiction to

restore Walker's vehicle in this or the companion case number 95-4951, even if

the judge had determined the rules were invalid or the alleged violations

unfounded. It is appropriate to note, however, that upon the effective date of

the rules' amendment, DOT no longer had the authority to hold Walker's vehicle

pending payment of the penalty, assuming that authority did exist prior to

amendment.

COPIES FURNISHED:

Thomas V. Infantino, Esquire

INFANTINO AND BERMAN

180 South Knowles Avenue, Suite 7

Post Office Drawer 30

Winter Park, Florida 32790

Paul Sexton

Chief, Administrative Law

Attention: Diedre Grubbs, Mail Station 58

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire

Department of Transportation

562 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

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.