KOZAK

v.

HILLSBOROUGH PUBLIC TRANSPORTATION COMMISSION

pro se

response in opposition (Dkt. 106), and Defendant’s reply (Dkt. 111). On January⁵, 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 a¹⁵ passenger vehicle and a⁷ 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 Hills-borough County in his¹⁵ 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 his¹⁵ passenger vehicle. Defendant contends that Plaintiffs¹⁵ 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 of¹⁰ to¹⁵ passengers, including the driver, for the transportation of for

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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 [Hills-borough 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 for¹⁵ 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 vehides 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 Clear-water and New Port Richey

4

that provide further transportation to cruise ship ports in South Florida,

5

and group special events and “charters.”

6

Plaintiff utilizes a¹⁵

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passenger 2003 Ford E-350 and a⁷ 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 the¹⁵ 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, “[s]huttle 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 the¹⁵ passenger vehicle or the⁷ 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 “[t]hey do not allow minivans.” (Pl. Dep. I at 80

10

). 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 noncompliance could result in criminal prosecution.

(See

Pl. Dep. I at 87 and, Ex. 5 [Dkt. 97-3 at 13]). As the Commission’s July²⁹, 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 Hillsborough County” as generally applicable to for-hire transportation from points within Hillsborough County to points outside the county.

(See

Pl. Dep. I, Ex. 5 [Dkt. 97-3 at 13];

cf. Pl. Dep. I at 89-90; Pl. Dep. II at 23).

By contrast, the Commission does not regulate public vehicles when the passengers are loaded outside Hillsborough County. (Dkt. 119, ¶ 4(n)). The only restriction the Commission places on Plaintiff is preventing him from loading passengers in Hillsborough County. (Pl. Dep. I at 78;

cf

Pl. Dep. II at 28-29; Dkt. 114 at 3).

Plaintiff became a licensed “seller of travel” pursuant to Fla. Stat. § 559.927(10) in September, 2003. Believing he was no longer required to possess a certificate or permit to load passengers in Hillsborough County, Plaintiff on at least one occasion loaded an air traveler at TIA and delivered the passenger to a location outside Hills-borough County pursuant to a prearranged contract.

(See

Pl. Dep. I. at 7, 51-53, 101-102). In October, 2003, Plaintiff was arrested at TIA by a Commission inspector for operating a public vehicle in Hillsborough County without a certificate and permit. ([Pl. Dep. I at 77, 87-88; Pl. Dep. II at 38; Dkt. 88, ¶ 9).

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When he was arrested, Plaintiff was attempting to load a passenger into his minivan, whom he had transported to TIA from Hernando County a few days earlier pursuant to a prearranged round-trip contract. (Pl. Dep. I at 17, 87-88; Pl. Dep. II at 38). The criminal charges were dismissed, as apparently has happened to charges against other limousine drivers. (Pl. Dep. I at 98-99; Dkt. 88, ¶ 10).

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Since his arrest, Plaintiff has not provided return trips from Hillsborough County because he fears enforcement and arrest. (Dkt. 119, ¶ 4(f); Pl. Dep. I at 56: Pl. Dep. II at 21;

of.

Dkt. 88, ¶ 10). Although still arranging round-trip transportation for Hillsborough County locations, Plaintiff arranges for a certificate holder to provide the return trip. (Pl. Dep. I at 47-48, 73; Pl. Dep. II at 18, 23, 26-27, 31-32). Plaintiff testified that in some instances he has had to turn away potential clients because the certificate holder’s smaller sedan could not accommodate the client’s cargo (e.g., a dog carrier) on the return trip. (Pl. Dep. II at 47-49).

Plaintiff has not been stopped or arrested by the Commission while driving the¹⁵ passenger vehicle. (Dkt. 119, ¶ 4); Pl. Dep. I at 73). Since his arrest, Plaintiff has deliberately avoided any situation that might result in his being stopped or arrested while driving either of his vehicles. (Dkt. 119, ¶ 4(s)).

Procedural History

Plaintiff initially filed this action in state court. It was removed to federal court. (Dkt. 1). In the original Complaint, Plaintiff alleged that his arrest was unlawful because Fla. Stat. §§ 341.102 and 559.939 and Article III, § 11(20) of the Florida Constitution prohibited the Commission from regulating state-licensed “sellers of travel” such as himself. (Dkt. 2, ¶¶ 19, 26, 64).

On September²⁴, 2004, Plaintiffs application for

Pullman

abstention was granted and the case was stayed to allow Plaintiff to file a declaratory judgment action in state court as to whether the Commission could, in accordance with state law, regulate state-licensed “sellers of travel.” (Dkt. 44). The Thirteenth Circuit Court for Hillsborough County granted the Commission’s motion for summary judgment, holding that the Commission had the authority to regulate “public vehicles” notwithstanding the provisions of Fla. Stat. §§ 341.102 and 559.939 and Article III, § 11(20). (Dkt. 48-4). The Florida Second District Court of Appeals affirmed.

See

Dkts. 57-2, 57-3;

Walter Kozak d/b/a Gunny’s Intrastate Travel and Tours v. Hillsborough County Pub. Transp. Comm’n,

979 So. 2d 229 (Fla. 2d DCA 2008).

Subsequently, Plaintiff filed an Amended Complaint in this action. Plaintiff alleged five claims: (1) “Federal authority over intrastate transportation” (Count I); (2) “Economic regulation and manipulation of the passenger ground transportation industry is a violation of the Sherman Act” (Count II); (3) “Commission regulatory scheme places discriminatory undue economic burdens on interstate commerce” (Count III); (4) “Application of 2001-299 is unequal and arbitrary” (Count IV); and (5) “Arrest of Kozak and seizure of property and threatened continued enforcement is unconstitutional” (Count V). (Dkt. 69).

Following dismissal of Plaintiffs Sherman Act, Commerce Clause, and Equal Protection Clause claims (Dkt. 83), Plaintiff filed a Second Amended Complaint realleging the following claims: (1) “Federal authority over intrastate transportation” (Count I); (2) “HCPTC regulatory scheme places a discriminatory undue burden on interstate commerce” (Count II); and (3) “Application of 2001-299 is unequal and arbitrary” (Count III). (Dkt. 88). After Counts II and III were dismissed with prejudice (Dkt. 95), rather than answering Count I,

12

the Commission

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filed the instant motion seeking summary judgment (Dkt. 96).

Although the parties agree that no factual disputes remain as to liability in Count I (Dkt. 119 at 1; Dkt. 114, ¶ 11), only the Commission has moved for summary judgment. The parties agree that Count I can be resolved as a matter of law on the admitted facts.

Justiciability

Although the Commission does not challenge Plaintiffs standing to sue, “[t]he federal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’ ”

FW/PBS, Inc. v. City of Dallas,

493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (quoting

Allen v. Wright,

468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). To satisfy Article Ill’s case or controversy requirement, “a plaintiff must, generally speaking, demonstrate that he has suffered ‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.”

Bennett v. Spear,

520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting

Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “[T]o demonstrate that a case or controversy exists to meet the Article III standing requirement when a plaintiff is seeking injunctive or declaratory relief, a plaintiff must allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future.”

Malowney v. Fed. Collection Deposit Group,

193 F. 3d 1342, 1346-47(11th Cir.1999) (citations omitted). The plaintiff must allege a real and immediate threat of future injury.

Wooden v. Bd. of Regents of Univ. Sys. of Ga.,

247 F. 3d 1262, 1284 (11th Cir.2001).

In determining whether a controversy is ripe, a court “look[s] primarily at two considerations: ‘the hardship to the parties of withholding court consideration’ and ‘the fitness of the issues for judicial decision.’ ”

Alabama Power Co. v. U.S. Dep’t of Energy,

307 F. 3d 1300, 1310 (11th Cir.2002) (quoting

Abbott Labs. v. Gardner,

387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). “A case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required.”

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans,

833 F. 2d 583, 587 (5th Cir.1987) (citing

Thomas v. Union Carbide Agric. Prods. Co.,

473 U.S. 568, 105 S.Ct. 3325, 3333, 87 L.Ed.2d 409 (1985)). However, “even where an issue presents purely legal questions, the plaintiff must show some hardship in order to establish ripeness.”

Central & Sw. Servs. v. E.P.A,

220 F. 3d 683, 690 (5th Cir.2000).

The doctrines of standing and ripeness are closely related and frequently overlap.

See Smith v. Wisconsin Dep’t of Agric., Trade and Consumer Prot.,

Alabama Power Co.,

307 F. 3d at 1310. In this case, the question of hardship for ripeness purposes is essentially identical to the question of whether an “imminent injury in fact” has been established for purposes of standing.

See Med-Immune, Inc. v. Genentech, Inc.,

549 U.S. 118, 128 n. 8, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007).

Plaintiff has not been stopped or arrested by the Commission while driving his¹⁵ passenger vehicle. Accordingly, Plaintiffs claim pursuant to 49 U.S.C. § 14501(a)(1)(C) essentially seeks pre-enforcement determination of the constitutionality of the Special Act as applied to the¹⁵ passenger vehicle. This claim presents the purely legal question of the meaning of “charter bus transportation” in 49 U.S.C. § 14501(a)(1)(C);

cf. Abbott Labs.,

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387 U.S. at 149, 87 S.Ct. 1507 (issue of statutory construction ripe for review when it raised only “purely legal” question of congressional intent). Moreover, Plaintiff presents evidence that postponing review would result in substantial hardship. Because he fears enforcement and arrest by the Commission, Plaintiff avoids loading passengers in Hillsborough County and his charter service business has apparently been diminished by general knowledge of his inability to provide round trip service to Hillsborough County. (Pl. Dep. I at 69, 77). Plaintiff should not be compelled to choose between complying with an allegedly unconstitutional rule that substantially restricts his business activities or disobeying the rule at the risk of a second arrest.

13

As for Plaintiffs claim pursuant to 49 U.S.C. § 14501(c), Plaintiff has not applied for a certificate and permit for the minivan or for a waiver and variance. As a general rule, “to establish standing to challenge an allegedly unconstitutional policy, a plaintiff must submit to the challenged policy.”

Jackson-Bey v. Hanslmaier,

115 F. 3d 1091, 1096 (2d Cir.1997);

see also Madsen v. Boise State Univ.,

976 F. 2d 1219, 1221 (9th Cir.1992). “This threshold requirement for standing may be excused only where a plaintiff makes a substantial showing that application for the benefit ... would have been futile.”

Jackson-Bey,

115 F. 3d at 1096.

14

Here, the Complaint alleges (Dkt. 88, ¶ 8) and Plaintiff presents unchallenged evidence that the luxury transportation service rule effectively precludes Plaintiff from acquiring a certificate and permit for the minivan (Pl. Dep. I at 80, 82). At oral argument, the Commission’s counsel confirmed that Plaintiffs minivan would not qualify as a limousine under the Commission’s rules. Although counsel was unable to state with certainty that Plaintiff would be unable to obtain a waiver and variance, the Commission recently denied a waiver of the luxury transportation service rule.

See Leib,

558 F. 3d at 1305. Favorably construed, the record contains minimally sufficient evidence that applying for a certificate and permit and requesting a waiver would be futile.

Cf. Prayze FM v. Fed. Commc’ns Comm’n,

214 F. 3d 245, 251 (2d Cir.2000).

As for ripeness, although Plaintiff presents evidence of hardship if judicial review is denied pending the submission of a futile application and the substantial application fees (Pl. Dep. I at 78-81;

cf.

Dkt. 88, ¶ 20), the record contains very little information about the actual effect of the luxury transportation service rule on prices or services. As discussed below, the issue is whether the luxury transportation service rule has a significant impact on prices, routes, or services of motor carriers with respect to the transportation of property. Notwithstanding, this scant evidentiary record is best understood as a failure of proof on Plaintiffs part, rather

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than the absence of a concrete factual setting involving application of the challenged rale. The adverse effect of the rule on Plaintiffs business activities is immediate, and the parties’ disagreement about its constitutionality is neither abstract nor hypothetical.

Standard

Summary judgment is proper if, following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). “Am issue of fact is ‘material’ if, under the applicable substantive law, it might affect the outcome of the case.”

Hickson Corp. v. N. Crossarm Co.,

357 F. 3d 1256, 1259-60 (11th Cir.2004). “Am issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.”

Id.

at 1260. The evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party.

Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970);

Jackson v. BellSouth Telecomms.,

372 F. 3d 1250, 1280 (11th Cir.2004).

Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial.

Celotex,

477 U.S. at 323-24, 106 S.Ct. 2548. Plaintiffs evidence must be significantly probative to support the claims.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Discussion

1. Preemption pursuant to 49 U.S.C. § 14501(a)(1)(C)

Plaintiff contends that the Commission’s requirement that Plaintiff obtain a certificate and permit before loading passengers in his¹⁵ passenger vehicle in Hillsborough County is expressly preempted by Section 4016 of the Transportation Equity Act for the 21st Century (“TEA-21”), Pub.L. No. 105-178, 112 Stat. 107 (1998), which amended the Federal Aviation Administration Authorization Act of 1994 (the “FAAA Act”), and which is codified at 49 U.S.C. § 14501(a)(1)(C).

The Supremacy Clause of the United States Constitution provides that the laws of the United States “shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. State law that conflicts with federal law is therefore “without effect.”

Cipollone v. Liggett Group, Inc.,

505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). The purpose of Congress is “ ‘the ultimate touchstone’ in every pre-emption case.”

Medtronic, Inc. v. Lohr,

518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quoting

Retail Clerks v. Schermerhorn,

375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963)).

Section 14501(a)(1)(C) protects providers of “charter bus transportation” from state or local regulation of operating authority. Section 14501(a) provides, in relevant part:

(a) Motor carriers

15

of passengers.—

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(1) Limitation on State law. — No State or political subdivision thereof ... 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.

49 U.S.C. § 14501(a).

16

The legislative history of TEA-21 suggests that Section 14501(a)(1)(C) was intended to “strike[] the authority of the states to regulate intrastate and interstate charter bus transportation.” H.R. Rep. 105-550, at 496 (1998) (Conf. Rep.).

The Commission does not dispute that Section 14501(a)(1)(C) preempts its regulatory authority over Plaintiffs transportation services if Plaintiff uses a “bus” to provide “charter transportation.” (Dkt. 96 at 13). However, the Commission argues that Plaintiffs¹⁵ passenger vehicle is not a bus and the services Plaintiff provides is predominantly livery service rather than charter service.

As an initial matter, the latter argument does not defeat Plaintiffs claim. The Commission concedes that Plaintiff at times provides “true” charter service.

17

Even if supported by the record, the contention that the bulk of Plaintiffs business is not charter transportation does not support the conclusion that the Commission may, consistent with Section 14501(a)(1)(C), require Plaintiff to obtain a certificate and permit to provide charter bus transportation in Hillsborough County.

See Executive Transp. Sys., LLC v. Louisville Reg’l Airport Auth.,

No. 3:06-CV-143-S, 2007 WL 2571908 *4 (W.D.Ky. Sept.⁴, 2007) (“[A] plaintiff need not be solely engaged in charter bus operations to make a claim under § 14501(a)(1)(C).”).

During oral argument, the Commission seemingly retreated from its concession that Plaintiff provides “true” charter service. The Commission contended that the record contains no evidence that third-party travel agencies contract with Plaintiff to provide group transportation for their clients at a fixed price for the exclusive use of his¹⁵ passenger vehicle. The Commission is mistaken. As detailed above, Plaintiffs testimony and business records demonstrate that travel agencies occasionally hire Plaintiff to provide round-trip group transportation for their clients to locations including the Port of Tampa and TIA at a fixed rate under a single contract and for the exclusive use of the¹⁵ passenger vehicle. Favorably construed, the record contains evidence that Plaintiff provides charter service in Hillsborough County.

18

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TEA-21 does not define “charter bus transportation.” Defining the term “bus” is therefore necessary in determining Congressional intent with respect to the scope of the intended preemption of state and local regulation of “charter bus transportation.” The term “bus” appears to have no uniform definition elsewhere in the United States Code or the Code of Federal Regulations,

19

or in ordinary meaning.

20

In addressing the scope § 14501(a)(1)(C) preemption, one district court turned to state law to define “charter bus.”

See Alex’s Transportation, Inc. v. Colorado Pub. Util. Comm’n,

88 F. Supp. 2d 1147, 1149 (D.Colo.2000) (state law defined a charter bus as a vehicle with a minimum capacity of thirty-two passengers). Relying on

Alex’s Transportation,

the Commission argues that Florida law should define “bus” and “van.”

21

In response, Plaintiff contends that his¹⁵ passenger vehicle is a bus pursuant to both state and federal law.

22

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Specifically, Plaintiff contends that his vehicle falls within the statutory definitions of “bus” in Fla. Stat. § 316.003(3) and 49 U.S.C. § 30127(a)(1).

23

Further, Plaintiff contends that preemption pursuant to Section 14501(a)(1)(C) depends not on the size or model of the vehicle but on the type of service provided.

I respectfully disagree with the analysis in

Alex’s Transportation.

Notwithstanding that Plaintiffs¹⁵ passenger vehicle is properly considered a “bus” under Florida law, applying state law definitions in interpreting and applying federal preemption law would be inconsistent with the uniformity Congress intended to achieve by enacting Section 14501(a)(1)(C) and the accompanying provisions of the FAAA Act.

24

Moreover, except as they might illustrate ordinary meaning of terms, acts of the Florida legislature provide no indication of Congressional intent.

25

Turning to federal law, when Congress passed TEA-21, 49 C.F.R § 393.5 defined “bus” as “[a] vehicle designed to carry more than¹⁵ passengers, including the driver.”

See

49 C.F.R § 393.5 (1998).

26

Instructive in determining the scope of § 14501(a) (l)(C)’s preemption in this case, the definition in former 49 C.F.R § 393.5 finds some support in a subsequently enacted provision of the FAAA Act. The Real Interstate Driver Equity Act of 2001 (“RIDE Act”) amended the FAAA Act by adding Section 14501(d). This section “[i]n essence ... prohibits States from requiring out-of-state, for-hire vehicles that provide pre-arranged ground transportation service to pay a license or fee.”

Black Car Assistance Corp. v. New Jersey,

351 F. Supp. 2d 284, 288 (D.N.J.2004). Section 14501(d) generally prohibits state and local authorities from:

requiring a license or fee on account of the fact that a motor vehicle is providing pre-arranged ground transportation service if the motor carrier providing such service—

(A) meets all applicable registration requirements under chapter 139 for the interstate transportation of passengers;

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(B) meets all applicable vehicle and intrastate passenger licensing requirements of the State or States in which the motor carrier is domiciled or registered to do business; and

(C) is providing such service pursuant to a contract for—

(i) transportation by the motor carrier from one State, including intermediate stops, to a destination in another State; or

(ii) transportation by the motor carrier from one State, including intermediate stops in another State, to a destination in the original State.

Pub.L. 107-298 § 2, 116 Stat. 2342; 49 U.S.C. § 14501(d).

Further, the RIDE Act amended 49 U.S.C. § 13102, by adding the following definition:

Pre-arranged ground transportation service. The term “pre-arranged ground transportation service” means transportation for a passenger (or a group of passengers) that is arranged in advance (or is operated on a regular route or between specified points) and is provided in a motor vehicle with a seating capacity

not exceeding¹⁵ passengers (including the driver),

(emphasis added)

Pub.L. 107-298 § 3(a)(2), 116 Stat. 2342; 49 U.S.C. § 13102(19).

The Senate Report states that the RIDE Act “would amend Federal transportation law to clarify that no State or political subdivision of a State, other than the home licensing State, may require a license or fee of a motor carrier or driver providing pre-arranged ground transportation service beginning in one State and ending in another, or beginning and ending in the same State with intermediate stops in or routing through another State.” S.Rep. No. 107-237, at 2 (Aug.¹, 2002).

27

Congress’ enactment of Section 14501(d) and its reference to vehicles “with a seating capacity not exceeding¹⁵ passengers” indicates that Congress drew a distinction in that context between vehicles with a passenger capacity of¹⁵ or less and those having a greater passenger capacity. Presuming that Congress would not enact duplicative and therefore unnecessary legislation, the passage of new Section 14501(d) indicates that Congress did not consider the providing of ground transportation in vehicles with a seating capacity of¹⁵ or less constituted “charter bus transportation.” Otherwise, operation of these smaller vehicles would already have been protected by § 14501(a)(1)(C). One may reasonably infer therefore, that the distinction between vehicles having a seating capacity of more than¹⁵ and those with¹⁵ or less is an indication that Congress does not consider a vehicle having a seating capacity of¹⁵ or less to be a “bus” capable of providing charter transportation services.

While the RIDE Act and its legislative record may not provide an express definition of “bus” under federal law, when considered with the definition of “bus” in former 49 C.F.R § 393.5, it reflects a Congressional understanding of the term, at least in that context, to be a vehicle with a seating capacity of more than¹⁵ passengers.

28

Moreover, application of

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the definition of “bus” in former 49 C.F.R § 393.5 to determine the preemptive scope of Section 14501(a)(1)(C) is consistent with the statement in the Conference Report that Section 14501(a)(1)(C) does not limit a State’s ability to regulate taxicab service or limousine

29

livery service, H.R. Rep. 105-550, at 496.

Finally, the Court is not persuaded by Plaintiffs argument that “charter bus transportation” for purposes of Section 14501(a)(1)(C) refers only to a mode of travel. While that argument finds some support in the case law,

30

charter service refers to the transportation of groups, not individuals.

31

Further, by employing the term “bus,” TEA-21 refers to a vehicle larger than a sedan and, as the Conference Report suggests, larger than an ordinary limousine.

It is undisputed Plaintiffs vehicle is not designed to carry more than¹⁵ passengers.

(See

Pl. Dep. I at 17-18). Because the Court concludes that “charter bus transportation” pursuant to Section 14501(a)(1)(C) includes transportation provided in a vehicle designed to carry more than¹⁵ passengers (including the driver), the Commission’s authority to require a certificate and license for the operation of Plaintiffs¹⁵ passenger vehicle is not preempted by 49 U.S.C. § 14501(a)(1)(C).

*1302

2. Preemption pursuant to 49 U.S.C. § 14501(c)

Plaintiff&#x²⁷; further contends that by limiting certificates and permits for limousine service to “luxury” vehicles, the Commission’s luxury transportation service rule prohibits Plaintiff from acquiring a certificate and permit for his minivan and thus limits his ability to meet his passengers’ property transport needs in violation of 49 U.S.C. § 14501(c).

32

The FAAA Act generally preempts state and local regulations “related to a price, route, or service of any motor carrier ... with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1). Borrowed from the Airline Deregulation Act of 1978 (the “ADA”), the statutory language has been interpreted consistently with decisions interpreting the ADA. See Rowe v. New Hampshire Motor Transp. Ass’n, 552

U.S. 364, 128 S.Ct. 989, 994-95, 169 L.Ed.2d 933 (2008);

Morales v. Trans World Airlines, Inc.,

504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). In

Morales,

the Court broadly interpreted the term “relating to” in the ADA as preempting “ ‘[s]tate enforcement actions

having a connection with, or reference to’

carrier ‘rates, routes, or services.’ ”

Rowe,

128 S.Ct. at 995 (quoting

Morales,

504 U.S. at 384, 112 S.Ct. 2031).

Morales

also determined that “pre-emption may occur even if a state law’s effect on rates, routes or services ‘is only indirect.’ ”

Rowe,

128 S.Ct. at 995 (quoting

Morales,

504 U.S. at 386, 112 S.Ct. 2031). In

Rowe,

the Court held that the same broad interpretation applies to the “related to” language of 49 U.S.C. § 14501(c)(1). 128 S.Ct. at 994-95.

The chief purpose of Section 14501(c)(1) is to deregulate certain aspects of intrastate transportation that place unreasonable burdens on free trade, interstate commerce, and consumers.

See

Pub.L. 103-305, § 601(a), 108 Stat. 1605;

City of Columbus v. Ours Garage and Wrecker Serv., Inc.,

536 U.S. 424, 440, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002).

33

On the other hand, Section 14501(c)(1) “does not pre-empt state laws that affect rates, routes, or services in ‘too tenuous, remote, or peripheral a manner.’ ”

Rowe,

128 S.Ct. at 997 (quoting

Morales,

504 U.S. at 391, 112 S.Ct. 2031). A state law is preempted only if it has a

“significant impact

on carrier rates, routes, or services,”

Rowe,

128 S.Ct. at 997 (quoting

Morales,

504 U.S. at 391, 112 S.Ct. 2031), or on the FAAA Act’s “ability to achieve its pre-emption-related objectives,”

Rowe,

128 S.Ct. at 995 (citing

Morales,

504 U.S. at 390, 112 S.Ct. 2031).

34

Here, the Commission’s luxury transportation service rule has not been shown to significantly impact rates, route, or services with respect to the transportation of property incident to passenger travel.

35

Accordingly, the Commission’s

*1303

luxury transportation service rule is not preempted by Section 14501(c)(1). The rule does not “reference” price, route, or services with respect to the transportation of property. The rule’s effect on the carriage of passenger “property,” including luggage, pet carriers, wheelchairs, sporting equipment

etc.,

is simply too remote and tenuous to fall within Congress’ intended preemption.

See Rowe,

128 S.Ct. at 997 (Section 14501(c)(1) “does not preempt state laws that affect rates, routes, or services in ‘too tenuous, remote, or peripheral a manner.’ ”) (quoting

Morales,

504 U.S. at 391, 112 S.Ct. 2031).

Conclusion

Because Plaintiff does not provide “charter bus transportation” in his fifteen-passenger vehicle, the Commission’s statutory authority to require Plaintiff to obtain a certificate and permit before loading passengers in the fifteen-passenger vehicle in Hillsborough County is not preempted by 14501(a)(1)(C). Further, the record contains no substantial evidence that the Commission’s luxury transportation service rule has a significant effect on price, route, or service “with respect to the transportation of property,” which would otherwise trigger preemption pursuant to 49 U.S.C. § 14501(c).

Accordingly, it is ORDERED AND ADJUDGED:

1) Defendant’s Motion for Summary Judgment (Dkt. 96) is GRANTED.

2) The Clerk is directed to enter judgment on Count I of the Second Amended Complaint against Plaintiff Walter Kozak, d/b/a Gunny’s Intrastate Travel and Tours and in favor of Defendant Hillsborough County Public Transportation Commission.

3) The Clerk is directed to close the case.