JULY LCT: With the new ELD mandate, motorcoach operators must consider having backup drivers available.
TAMPA, Fla. — On Tuesday, Jan. 5, Walter “Gunny” Kozak finally had his day in court.
As first reported by LCT in August 2009, Kozak, owner of Gunny’s Tour and Travel in Spring Hill, Fla., was denied a permit by the Hillsborough County Public Transportation Commission based on its definition of a van.
Kozak argued that the HCPTC lacks the authority to define a van when the state and federal departments of transportation (FDOT and DOT) already have such laws on the books. Kozak asked a federal court to decide what law to use when defining a van. The HCPTC filed a motion for a summary judgment basically to have the court validate their authority. The judge denied the request, so a final verdict is not in yet and the case remains unresolved.
To review the first article in this going series, visit the Aug. 12 posting on LCT E-News.
Meanwhile, Kozak has filed another lawsuit against the HCPTC contending that HCPTC's special law violates the Florida Constitution by placing motor carriers subject to regulation by the Florida DOT under HCPTC’s regulations.
The Court is being asked to declare the statutory definition of limousine and van be ruled unconstitutional. The Florida Constitution provides that there will be no special laws pertaining to regulating an occupation regulated by a state agency.
The suit also contends that the HCPTC's definition of limousine violates administrative law in that it enlarges and modifies the statutory definition of a limousine. It also claims the HCPTC had implemented a 900% application fee increase to suppress competition and that is an invalid exercise of since the law only allows the HCPTC to set fees for "services rendered."
The HCPTC is an independent “special district” that was created in the 1970s by a special act of the Florida Legislature. It devises rules defining vans, limousines, how old a vehicle can be, and what type of service can be provided. Some of these rules have at times conflicted with federal Department of Transportation definitions and Florida state laws.
For example, in one instance the HCPTC rules have gone so far as declaring that the Mercedes “S-Class” models are not luxury vehicles. HCPTC commissioner Kevin White, commenting on an operator application to add a Mercedes S-Class, stated in a public hearing, “Just because it’s a Mercedes-Benz, in my mind, doesn’t make it a luxury limousine.”
In October 2008, the HCPTC hiked its application fee from $500 to $5,000.
This increase combined with a dispute over the HCPTC’s definition of a limousine caused Moshe Lieb, owner of Tampa Bay Limousine, to take legal action specifically questioning the legal authority of HCPTC to expand a state legal definition of a limousine.
Specifically, HCPTC has a 236-word definition of “limousine” while Florida’s legislature uses 23 words. In the opinion of the HCPTC, even if you don’t live in or transact business within the boundaries of Hillsborough County, you are still under its jurisdiction while passing through and as such must have a permit to pick up a passenger in Hillsborough County.
On Aug. 12, 2009, HCPTC shut down a company offering electric cart rides in Tampa, citing its authority to regulate them and therefore deem them to be illegal. An attorney for the cart company, Green Go, asserted HCPTC did not have authority to regulate them since their powers are clearly spelled out to regulate limousines, vans, buses, and taxis. The carts don’t have meters and only run a specific circuit route. The HCPTC would need an act of legislature to regulate a new type of vehicle not already defined in its scope of power rather than just decide on a whim what type of vehicles it may control, according to Green Go’s attorney.
HCPTC already knew this because Hillsborough County’s own county attorney, Orlando Perez, had twice advised the commission against adopting rules not specifically empowered by state law such as the cart regulation.
In a 2007 opinion published by The Tampa Times, Florida’s Attorney General, Bill McCollum, also advised HCPTC if there was a question over authority, HCPTC should assume the power does not exist. The Attorney General’s office also forced the HCPTC to allow the carts to continue to operate while litigation is in process.
In a March 12, 2009 letter to the HCPTC by Brian Moore, Chief Attorney for the Florida Joint Administrative Procedures Committee (JAPC), “Some of the definitions substantively appear to differ from the legislative definitions. For example, the definitions of ‘capacity,’ ‘limousine,’ and ‘type of service’ contain much more detail than legislative definitions,” and, “they are being used in a way that appears to attempt to change legislative definitions” and the letter goes on to admonish, “The HCPTC does not have the authority to amend the Act or modify statutory provisions.”
A subsequent letter issued Sept. 10, 2009 asks for an update and for HCPTC to “please explain why it (corrections) has not been done and provide me with the commission’s expected timeline for accomplishing its responsibilities.”
The blatant disregard of Moore’s letters may have been just the spark needed to initiate reform within an agency rife with problems. The newest conflict within the halls of HCPTC concern the interim director, Cesar Padilla, and suspected abuse of county computers and work time as well as a question of just how long an “interim” director can serve in such capacity.
A local television news program accused Padilla of using county computers and time to complete homework at St. Leon University, according to the official minutes of the HCPTC’s September meeting. This comes right on the heel of HCPTC’s Chairman, Kevin White, losing a sexual discrimination lawsuit brought on by a former aide. Alyssa Ogden has sued for $145,000 complaining that White had sexually harassed the 22-year-old employee and then fired her when she refused to submit, according to a St. Petersburg Times article. The estimated total cost to the HCPTC is closer to $300,000 as the agency and White were ordered to pay all legal expenses including Ogden’s attorney fees.
Now, with the agency under a heavy microscope, other disturbing details are emerging from this troubled agency. According to Alex Sink, Chief Financial Officer of the state of Florida, HCPTC combined revenue for 2007 and 2008 was $1,725,051 while the combined expense was $2,024,505. This raises suspicions about why it considered raising its application fees and attempting to regulate vehicles beyond its scope. Florida taxpayers are now footing the bill for another loss of $299,454.
As Lieb and Kozak have fought their battles, they have garnered the attention of legislators such as Florida State Rep. Michael Scionti, Florida State Sen. Rhonda Storms, and State Rep. Richard Gloriso, who are backing the limousine industry in the fight against excessive regulations.
Storms and Gloriso introduced “Local Bill 03” through the Hillsborough County Legislative Delegation at the recommendation of Moore. “Local Bill 03” creates a method for a citizen to challenge the HCPTC rules that does not now exist. The bill was to be voted upon by the now defunct Hillsborough County Legislative Delegation at a meeting on Dec. 18, 2009. The status of the bill was not posted on its official Web site by its final closing date of Dec. 31, 2009, and an inspector at the HCPTC who refused to identify himself stated that “only the chief or Cesar would know that” when asked if the bill had passed.
This action came after Lieb attempted to challenge HCPTC on both the huge increase in application fees and the fact that the HCPTC refused to certify his Toyota Prius hybrid vehicles for livery operation. Lieb took his battle to the Florida Division of Administrative Hearings which rejected the case stating that it did not have the power to decide upon the case, thus indicating the need for a legislative amendment to give it the power to decide cases involving citizens and the HCPTC.
The HCPTC must adopt rules that comply with Florida Administrative law, which means that the rule must reference the provision of law being implemented and cannot modify or enlarge the provision of law. If an HCPTC rule cannot be referenced directly to a specific provision of law, the rule is invalid.
HCPTC Commissioner Kevin White disputes the need for oversight stating, “There is ample opportunity for public input through workshops and public hearings before any new rule or ordinance go into effect.”
In cases like this, the Division of Administrative Hearings (DOAH) provides an avenue for citizens to challenge decisions of most government agencies before an administrative judge if the petitioner or citizen believes are not in conformance with the law. The HCPTC has been able to dismiss rules challenged before DOAH under a claim that their special law does not have a “rules challenge” provision. Moore felt this was an injustice and approached Senator Storms who Chairs JAPC and the wheels were put into motion to amend the law.
In Lieb’s case, he wanted the DOAH judge to review the HCPTC's rule definition of limousine since it “enlarges” the statutory definition by over 200 words. However, since the DOAH judge determined he did not have proper jurisdiction, it was necessary to modify the current law to allow DOAH to have jurisdiction.
In a letter from Moore to Sen. Arthenia Joyner, Moore explains his position relative to HCPTC and DOAH and even questions its existence in his Nov. 18 e-mail, stating, “It is the only one of its kind in the State of Florida. In the other 66 counties, local municipal and county ordinances regulate the industries that the Commission regulates in Hillsborough.”
In another statement, Moore said in response to the suggestion that the special act creating the Commission be repealed: “It was asserted (by the HCPTC) that the same problems would come back. I do not know enough about the local history to determine whether there is something special about the Hillsborough County Charter or local conflicts between the municipalities that prevent the type of cooperation between local governments used everywhere else in the state. In other words, I have no idea whether there are any legitimate concerns about what would happen in the absence of a state-created commission instead of a county-created commission."
Sources: HCTPC, St. Petersburg Times, Walter Kozak, Moshe Lieb
Compiled by LCT contributing editor Jim Luff
JULY LCT: With the new ELD mandate, motorcoach operators must consider having backup drivers available.
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