Kozak v. HILLSBOROUGH PUBLIC TRANSP. COM'N

Decision Date16 February 2010
Docket NumberCase No. 8:04-CV-1162-T-27TBM.
Citation695 F. Supp.2d 1285
PartiesWalter KOZAK d/b/a Gunny's Intrastate Travel and Tours, Plaintiff, v. HILLSBOROUGH PUBLIC TRANSPORTATION COMMISSION, Defendant.
CourtU.S. District Court — Middle District of Florida

695 F. Supp.2d 1285

Walter KOZAK d/b/a Gunny's Intrastate Travel and Tours, Plaintiff,
v.
HILLSBOROUGH PUBLIC TRANSPORTATION COMMISSION, Defendant.

Case No. 8:04-CV-1162-T-27TBM.

United States District Court, M.D. Florida, Tampa Division.

February 16, 2010.


695 F. Supp.2d 1289

Walter Kozak, Spring Hill, FL, pro se.

Brandon Robert Scheele, Fowler White Boggs, Tampa, FL, James L. Yacavone, III, Jay Daigneault, Frazer, Hubbard, Brandt, Trask & Yacavone, LLP, Dunedin, FL, for Defendant.

ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT is Defendant Hillsborough County Public Transportation Commission's Motion for Summary Judgment (Dkt. 96), Plaintiffs pro se response in opposition (Dkt. 106), and Defendant's reply (Dkt. 111). On January 5, 2010, the Court heard oral argument on the motion. Upon consideration, Defendant's Motion for Summary Judgment is GRANTED.

Plaintiff operates a ground transportation service utilizing a 15 passenger vehicle and a 7 passenger mini-van. Plaintiffs business is based in Hernando County. Plaintiff also contracts with individuals and travel agencies to transport passengers to locations in Hillsborough County, such as Tampa International Airport ("TIA") and the port facilities in Tampa.

Defendant Hillsborough County Public Transportation Commission ("the Commission") regulates ground transportation service in Hillsborough County pursuant to legislative authority. While the Commission's ground transportation regulations do not restrict Plaintiff from transporting passengers to locations in Hillsborough County, its rules require Plaintiff to obtain a certificate and permit to pick up passengers in Hillsborough County. The practical effect of this restriction is that Plaintiff cannot provide round trip services to his clients without obtaining a certificate and permit from the Commission.

In Count I of the Amended Complaint, Plaintiff seeks declaratory and injunctive relief, contending that the Commission's regulation of ground transportation which requires him to obtain a certificate and permit before loading passengers in Hillsborough County in his 15 passenger vehicle is expressly preempted by 49 U.S.C. § 14501(a)(1)(C). Section 14501(a)(1)(C) prohibits state and local regulation of operating authority for "charter bus transportation." The issue is whether Plaintiff provides "charter bus transportation" when providing transportation to passengers using his 15 passenger vehicle. Defendant contends that Plaintiffs 15 passenger vehicle does not constitute a "bus" and that his services do not constitute charter bus transportation.

A secondary issue in the case is whether Defendant's application of its luxury transportation service rule to Plaintiffs minivan is preempted by federal law, which prohibits state and local regulations "related to price, route, or service of any motor carrier... with respect to the transportation of property." 49 U.S.C. § 14501(c)(1).

Background

The Commission was created by the Florida Legislature to "regulate the operation of public vehicles upon the public highways of Hillsborough County and its municipalities." 2001 Fla. Laws 299 (the "Special Act" or "Ch. 2001-299") § 2(1); Dkt. 119, ¶ 4(g).1 The Special Act defines a van as "any motor-driven vehicle with a capacity of 10 to 15 passengers, including the driver, for the transportation of for

695 F. Supp.2d 1290
hire passengers, which operates within Hillsborough County but does not include sight-seeing cars and buses, streetcars, motor buses operated pursuant to a franchise or courtesy vans, and limousines not for hire." Ch. 2001-299 § 3(33)

The Special Act requires any person wishing to operate a public vehicle conducting for-hire trips in Hillsborough County to obtain a certificate of public necessity and convenience, which is the Commission's "written authority ... to operate one or more public vehicles in Hillsborough County and its municipalities." Ch. 2001-299 § 3(5); Dkt. 119, ¶ 4(1); see also Ch. 2001-299 § 7(2). Having acquired a certificate, a person must then obtain a permit, which is a "license issued by the commission to allow the operation of a particular public vehicle for which a certificate has been issued." Ch. 2001-299 § 3(20).

The Special Act defines a limousine as "any motor vehicle for hire not equipped with a taximeter, with a capacity for 15 passengers or less, including the driver." Id. § 3(17); Dkt. 119, ¶ 4(j). Commission Rule 1.15, the "luxury transportation service rule," initially defines a limousine using the language of the Special Act but adds this gloss:

This definition consists of vehicles which are recognized by the industry as `luxury' vehicles, that are considered as high-end luxury vehicles by the manufacturer and vehicles that have been uniquely modified so as to provide `luxury' limousine service. The `luxury' quality of vehicles will be determined by assessing aesthetics of the interior and exterior of the vehicle, amenities provided to the passenger, spaciousness and comparison to current industry standards for vehicles performing limousine service in Hillsborough County.

Dkt. 119, ¶ 4(k).

The Special Act also authorizes the Commission to grant variances and waivers. Id. § 5(mm); see also Leib v. Hillsborough County Pub. Transp. Comm'n, 558 F.3d 1301, 1305 (11th Cir.2009). Finally, the Special Act authorizes any person aggrieved by a final decision of the Commission denying a certificate or denying a petition for a variance and waiver to seek judicial review pursuant to the Florida Administrative Procedures Act. Ch. 2001-299 §§ 7(d), 13(2).

Plaintiff's business operations

Plaintiff Walter Kozak, d/b/a Gunny's Intrastate Travel and Tours, is a sole proprietorship based in Hernando County, Florida. (Dkt. 119, ¶ 4(b); Dkt. 114, ¶ 9(b)). Plaintiff began operating in 2003 and is licensed by the State of Florida as a "seller of travel." See Fla. Stat. § 559.927(10) (Dkt. 119, ¶ 4(d)).2 Plaintiff offers ground transportation and related transfers to and from airports, cruise ship ports and casinos in Tampa, Orlando, St. Petersburg, and Port Canaveral,3 transfers to "Cruise Connection" buses in Clearwater and New Port Richey4 that provide further transportation to cruise ship ports in South Florida,5 and group special events and "charters."6 Plaintiff utilizes a 15

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passenger 2003 Ford E-350 and a 7 passenger 2003 Ford Windstar minivan. (Pl. Dep. I at 13, 15, 17; Pl. Dep. II at 8; Dkt. 119, ¶ 4(e)7)

Plaintiff testified that at times he contracts with travel agencies to transport their customers. (Pl. Dep. I at 60-65; 67-72, 74-77). Travel agencies hire Plaintiff to provide group transfers to the Port of Tampa, the Cruise Connection buses, and the Tampa and St. Peterburg airports. (Pl. Dep. I at 68-70, 72).8 Plaintiffs business records confirm that he contracts with travel agencies to provide round trip group transfers to locations in Hillsborough County.9 Plaintiff uses the 15 passenger vehicle when hired by travel agencies because "it is always groups." (Pl. Dep. I at 75; cf. Pl. Dep. I at 64). Plaintiff charges a flat rate that does not depend on the number of passengers. (Pl. Dep. I at 75-76).

Plaintiff has been doing business with travel agencies since he began operating. (Pl. Dep. I at 74). Travel agencies generally contract with Plaintiff for round-trip service. (Pl. Dep. I at 72-73). Because he does not possess a certificate and fears enforcement and arrest by the Commission, Plaintiff arranges for a certificate holder to provide return transfers from Tampa. (Pl. Dep. I at 73; Pl. Supp. Interrog. No. 4).

Plaintiff does not use the minivan to carry more than four passengers with luggage. (Pl. Dep. I at 84.) Although Plaintiff never transports property by itself (Pl. Dep. II at 44-45), Plaintiffs passengers typically have baggage. (Pl. Dep. II at 23-24). Plaintiff transports that property as an ancillary service (Dkt. 88, ¶ 23).

Plaintiffs deposition testimony demonstrates that he primarily provides transfers to and from airports, cruise ship ports, and charter bus connections. However, Plaintiff provides "direct" service rather than "shuttle" service (Pl. Dep. I at 44, 55) or, as Plaintiff also terms it, "share ride" service. (Pl. Dep. II at 25). According to Plaintiff, "shuttle service is multiple stop, multiple pick-ups." (Pl. Dep. I at 44). Providers of shuttle service pick up multiple passengers and "make their money by putting more than one fare into the vehicle." Id. Their fares are lower. Id. By contrast, direct service "is a higher

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charge because the clients are the only ones. You're picking them up, taking them straight to their location, or meeting them at their location, taking them straight back." Id.

Plaintiff has never applied for a certificate or permit to operate the 15 passenger vehicle or the 7 passenger minivan in Hillsborough County. (Dkt. 119, ¶¶ 4(o), (p), (q)). When he began operating as Gunny's, Plaintiff could not obtain a permit for the minivan pursuant to the Commission rules because "they do not allow minivans." (Pl. Dep. I at 8010). Plaintiff admits that the minivan is not a limousine as that term is commonly understood. (Pl. Dep. II at 53).

Plaintiff has known since March, 2003 that providing for-hire transportation service in Hillsborough County could subject him to arrest. (Pl. Dep. I at 35-36 and Ex. 2 Dkt. 97-3 at 3-4). On three or four occasions, Plaintiff received letters from the Commission warning him that anyone providing for-hire transportation service originating in Hillsborough County must possess a certificate and that non-compliance could result in criminal prosecution. (See Pl. Dep. I at 87 and, Ex. 5 Dkt. 97-3 at 13). As the Commission's July 29, 2003 warning letter indicates, the Commission interprets the provision of the Special Act requiring a certificate to lawfully operate a public vehicle providing for-hire transportation "in...

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    ...support a finding of preemption in this action.Rather, the Court follows the rationale set forth in Kozak v. Hillsborough Public Transportation Commission, 695 F.Supp.2d 1285 (M.D.Fla.2010). In Kozak, defendant, a legislatively-created transportation commission, enacted a “ ‘luxury transpor......
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