CopyAgo (Fla. Att'y Gen. 1985).
Published | Florida Attorney General Reports
...Mellon: This is in response to your request for an Attorney General's Opinion on the following questions: 1. WITHIN THE CONTEXT OF A ROTATION CALL SYSTEM WHEREIN OPERATORS ARE CALLED IN SUCCESSION FROM A LIST, DOES THE DEPARTMENT HAVE THE AUTHORITY UNDER s. 321.051 , F.S., TO ADOPT RULES PROVIDING FOR THE FOLLOWING: A. STORAGE REQUIREMENTS FOR TOWED VEHICLES; B. THE MINIMUM NUMBER OF TOW TRUCKS THAT AN OPERATOR MUST HAVE TO BE ELIGIBLE FOR USE IN THE SYSTEM; C. MINIMUM RATES FOR TOWING AND STORAGE SERVICES AND PROVIDING FOR RATE DISCLOSURE? 2. DOES s. 321.051 , F.S., AUTHORIZE THE DEPARTMENT TO ESTABLISH A FRANCHISE SYSTEM FOR UTILIZING WRECKER SERVICES WHEREBY AN EXCLUSIVE CONTRACT, WHICH INCLUDES RECOGNIZED SAFETY AND MECHANICAL STANDARDS, IS AWARDED TO AN OPERATOR FOR A CERTAIN ZONE BASED ON A SET FEE OR PERCENTAGE OF REVENUES PAYABLE TO THE DEPARTMENT AND WHICH PROVIDES FOR MAXIMUM FEES TO BE CHARGED THE PUBLIC FOR TOWING AND STORAGE SERVICES? 3. DOES s. 321.051 , F.S., AUTHORIZE THE DEPARTMENT TO ESTABLISH A LOW BID CONTRACT SYSTEM FOR A PARTICULAR ZONE WHEREBY WRECKER SERVICE IS AWARDED TO THE OPERATOR OFFERING THE LOWEST FEE FOR TOWING AND STORAGE? As your questions are interrelated, they will be answered together....
...Thus, any authority or power which the Division of Florida Highway Patrol, Department of Highway Safety and Motor Vehicles, seeks to exercise in promulgating administrative rules or establishing a wrecker operator system must affirmatively appear from the provisions of s. 321.051 , F.S., or be necessarily implied therefrom. Section 321.051 , F.S., provides as follows: 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 wrecke...
...State,
335 So.2d 815 (Fla. 1976); Dobbs v. Sea Isle Hotel,
56 So.2d 341 (Fla. 1952); Ideal Farms Drainage Dist. v. Certain Lands,
19 So.2d 234 (Fla. 1944). Applying this principle to the instant inquiry, I am unable to conclude, based on the language of s.
321.051 , F.S., which empowers the Department of Highway Safety and Motor Vehicles to establish a wrecker operator system only "for removal of wrecked or disabled vehicles" (e.s.) utilizing qualified, reputable operators, that this statute authorizes the department to promulgate rules governing storage requirements for towed vehicles, nor can I conclude that such authority is necessarily or reasonably implied from the mandate in s.
321.051 , F.S., that the department establish a wrecker operator system for the removal of vehicles....
...part of the statute as a whole and, from a view of the whole law in pari materia, the court will determine the legislative intent. State v. Gale Distributors, Inc.,
349 So.2d 150 (Fla. 1977). Thus, the requirement expressed in the first sentence of s.
321.051 , F.S., that the department establish "a system utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles" under specified circumstances must be read and harmonized with the statutory directive that "[a]l...
...244, "[t]he word `all' is defined as meaning each one of; each, each and every, or each or every one of; every, every one, every one of, every one of which, or every part; every member or individual component of. . . ." (e.s.) Relying on this reasoning, I must conclude that the department is not authorized by s. 321.051 , F.S., to promulgate rules designed to limit participation in a wrecker operator system by establishing the minimum number of tow trucks that an operator must have to be eligible for use in such a system, nor does it appear that the statu...
...It is the rule that a legislative direction as to how a thing shall be done is, in effect, a prohibition against its being done in any other way. Alsop v. Pierce, supra; Dobbs v. Sea Isle Hotel, supra; Thayer v. State, supra. Applying this principle of construction to s. 321.051 , F.S., the statute enumerates those factors upon which the Division of Florida Highway Patrol may base participation in the wrecker operator system and consideration of other factors or criteria is prohibited....
...Therefore, in the absence of such factors, a rule establishing the minimum number of tow trucks that a wrecker operator must own or the minimum rates for towing and storage and providing for rate disclosure in order to participate in a wrecker operator system established pursuant to s. 321.051 , F.S., would not appear to be authorized....
...ll reputable wrecker operators shall be eligible for use in the system. . . ." Therefore, such wrecker operator system as a franchise system or a low bid contract system does not appear to represent such wrecker operator system as is contemplated by s. 321.051 , F.S. Moreover, an examination of the title of the act creating s. 321.051 , F.S., supports the conclusion that the department is not authorized to establish either a franchise system or a low bid contract system....
...and as evidence of the legislative intent. State v. Yeats,
77 So. 262 (Fla. 1917). And see, Parker v. State, supra; Cook v. Blazer Financial Services, Inc.,
332 So.2d 677 (1 D.C.A.Fla., 1976). The title to Ch. 80-402, Laws of Florida, which created s.
321.051 , F.S., states that it is An act relating to maintenance of an approved wrecker system of call allocation; ....
...for call to accident scenes or removal of abandoned vehicles when owner or operator incapacitated, unavailable or leaves decision to officer; providing guidelines for entry and retention on the system of call allocation;. . . . (e.s.) The intent of s. 321.051 , F.S., as ascertained from the language of the statute itself and a consideration of the title to Ch....
...equipment and drivers meet recognized safety qualifications and mechanical standards set by rules of the division for the size of the vehicle which they are to handle. In sum, it is my opinion that the Division of Highway Patrol is not authorized by s. 321.051 , F.S., within the context of a call rotation system to promulgate rules governing storage requirements for towed vehicles, or to provide by rule for the minimum number of tow trucks that a wrecker operator must have to be eligible to participate in the wrecker operator system established by the division, or to establish minimum rates for towing and storage services and provide for rate disclosure by rule. The legislative intent of s. 321.051 , F.S., appears to contemplate the development of a call rotation or allocation wrecker operator system in which all reputable wrecker operators may participate if their drivers and equipment meet recognized safety qualifications and mechanical standards as prescribed by the division and such section would not authorize the division to establish either a franchise system or a low bid contract system as the wrecker operator system described in s. 321.051 , F.S....
