Kozak v. Hillsborough County, 10–11217.

• Decision Date: 30 June 2011
• Docket Number: No. 10–11217.,10–11217.
• Citation: 23 Fla. L. Weekly Fed. C 93,644 F.3d 1347
• Parties: Walter KOZAK, d.b.a. Gunny's Intrastate Travel and Tours, Plaintiff–Appellant,v.HILLSBOROUGH COUNTY, FLORIDA, a political subdivision of the State of Florida, et al., Defendants,Hillsborough County Public Transportation Commission, an Independent Special District of the State of Florida, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

644 F.3d 1347

23 Fla. L. Weekly Fed. C 93

Walter KOZAK, d.b.a. Gunny's Intrastate Travel and Tours, Plaintiff–Appellant,

v.HILLSBOROUGH COUNTY, FLORIDA, a political subdivision of the State of Florida, et al., Defendants,Hillsborough County Public Transportation Commission, an Independent Special District of the State of Florida, Defendant–Appellee.

No. 10–11217.

United States Court of Appeals, Eleventh Circuit.

June 30, 2011.

Walter Kozak, Spring Hill, FL, pro se.Jay Daigneault, James L. Yacavone, III, Frazer, Hubbard, Brandt, Trask & Yacavone, LLP, Dunedin, FL, Brandon Robert Scheele, Banker Lopez Gassler, PA, Tampa, FL, for Defendant–Appellee.Appeal from the United States District Court for the Middle District of Florida.Before TJOFLAT, CARNES and HILL, Circuit Judges.CARNES, Circuit Judge:

Walter Kozak owns and operates Gunny's Interstate Travel and Tours, a flat-rate ground transportation service operating in Hillsborough County, Florida that transports passengers and their luggage. He provides that service using a 15–passenger vehicle and a 7–passenger minivan. Florida law authorizes the Hillsborough County Public Transportation Commission to regulate transportation services in the area where Kozak operates, see 2001 Fla. Laws 299, and it has adopted regulations exercising that authority. Under the Commission's regulations, in order for Kozak to pick up passengers in Hillsborough County using either of his two vehicles he must first obtain a certificate and a permit for each vehicle from the Commission. Kozak has not obtained either one for either of his vehicles.¹

Kozak filed a lawsuit seeking declaratory and injunctive relief, claiming that the Commission's regulations requiring him to obtain certificates and permits for his vehicles were preempted by 49 U.S.C. § 14501, also known as the Transportation Equity Act for the 21st Century. Specifically, Kozak contended that 49 U.S.C. § 14501(a)(1)(C) preempts the Commission's regulation regarding his 15–passenger vehicle and that 49 U.S.C. § 14501(c)(1) preempts the Commission's regulation regarding his 7–passenger minivan. Rejecting both of those contentions, the district court granted the Commission's motion for summary judgment. Kozak v. Hillsborough Pub. Transp. Comm'n, 695 F.Supp.2d 1285, 1303 (M.D.Fla.2010). Kozak appealed pro se.

I.

Kozak's first argument here, as in the district court, is that the Commission's regulation requiring him to obtain a certificate and permit for his 15–passenger vehicle is expressly pre-empted by 49 U.S.C. § 14501(a)(1)(C). Section 14501(a)(1)(C) states:

(a) Motor carriers of passengers.—

(1) Limitation on State law.—No State or political subdivision thereof and no interstate agency or other political agency of 2 or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to—

* * *

(C) the authority to provide intrastate or interstate charter bus transportation.

§ 14501(a)(1)(C). We affirm the district court's decision rejecting this argument for the reasons set out in its opinion, see Kozak, 695 F.Supp.2d at 1296–1301, that part of which we adopt.

II.

Kozak also argues here, as in the district court, that in light of the Commission's regulation prohibiting him from operating his 7–passenger minivan without a certificate and permit, its luxury service transportation rule that prevents him from obtaining the required certificate and permit for his 7–passenger minivan, is expressly preempted by 49 U.S.C. § 14501(c)(1). Section 14501(c)(1) states:

(c) Motor carriers of property.—

(1) General rule.—Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... with respect to the transportation of property.

§ 14501(c)(1) (emphasis added). The district court found that the Commission's rule was not preempted because that rule does not significantly impact the rates, routes, or services with respect to property. Kozak, 695 F.Supp.2d at 1302–03. We affirm the district court's decision about this regulation and rule, but we do so for a different reason. See Chappell v. Chao, 388 F.3d 1373, 1376–77 (11th Cir.2004) (“We may affirm the district court's decision for reasons different than those stated by the district court.”).

The definitions section for 49 U.S.C. § 14501 is contained in § 13102, which defines “[m]otor carrier” as “a person providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). Kozak does not dispute that he is a “[m]otor carrier.” See id. The term “[m]otor carriers of property” is not defined in the statute. See 49 U.S.C. § 13102 . Kozak argues that he is one. He admits, however, that he “never transports property by itself”; and he plainly falls under § 14501(a), which applies to “[m]otor carriers of passengers.” Even so, Kozak argues that he is also a motor carrier of property when he transports passengers using his minivan because, as an “ancillary service” (his term), he also transports his passengers' property.

If we were to accept Kozak's argument, every “[m]otor carrier” would be a “[m]otor carrier of property,” because motor carriers transporting passengers would, at the same time, be transporting property, unless all of the passengers were unclothed and had no bags, purses, glasses, cell phones, or other property with them. Absent that barely imaginable circumstance, any time any vehicle transports any passengers it is also transporting as an “ancillary service” some of their property. For that reason, Kozak's strained interpretation of the term “motor carrier of property” would render the statutory words “of property” superfluous. See Dole Food Co. v. Patrickson, 538 U.S. 468, 476–77, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003) (“[W]e...