STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS C. HEINRICH CORP., )

)

Petitioner, )

)

vs. ) CASE NO. 86-4797

) DEPARTMENT OF TRANSPORTATION,)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 14, 1987, at Tampa, Florida.

APPEARANCES

For Petitioner: Mark A. Linsky, Esquire

1509 Sun City Center Plaza, Suite B Sun City Center, Florida 33570

For Respondent: Vernon L. Whittier, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0458

By Petition filed March 10, 1987, Thomas C. Heinrich Corporation, Petitioner, by and through its attorney, requests a modification or rescission of the $3835 civil penalty issued against Petitioner for operating a vehicle without a current Florida registration.

At the hearing, Petitioner called one witness, Respondent called one witness and 10 exhibits were admitted into evidence. There is no dispute regarding the facts here involved. Accordingly, proposed findings submitted by the parties are accepted. Any of those proposed findings not fully included below were deemed inmaterial to the conclusions reached.

FINDINGS OF FACT

1. Thomas C. Heinrich Corporation has been in existence for approximately four years, in road construction, and acquired its first tractor-trailer on which to haul its heavy equipment in February 1986. It operates five other smaller trucks used in road construction work.

   
   

2. Prior to acquisition of the low boy in 1986, it used other carriers to haul its off-the-road heavy equipment.

   
   

3. Upon receipt of the tractor-trailer Petitioner registered the vehicle and obtained a license tag. Unlike automobile registrations, which are

   generally valid for one year, heavy truck registrations are usually issued twice per year and expire May 31 and December 31. Accordingly, when Petitioner registered this tractor-trailer on February 11, 1986, the registration showed an expiration date of May 31, 1986. At the same time, Tag No. FK 2011 was issued for this vehicle with the registration decal to be attached to the tag showing the same number on the registration, and an expiration decal to be attached to the tag showing December as the expiration month.

   
   

4. Petitioner did not notice the discrepancy between the expiration decal on the tag and the expiration date on the registration certificate. Between May 31, 1986, and August 26, 1986, this tractor-trailer had gone through weigh stations where the registration was checked several times without anyone noticing the discrepancy.

   
   

5. On August 26, 1986, while this vehicle was transporting a back hoe on

   U.S. 301 in Hillsborough County, the vehicle was stopped by a Department of Transportation Weight and Safety Officer who suspected the vehicle was overloaded. Upon checking the registration this officer noted that it had expired May 31, 1986, and refused to allow the tractor-trailer to proceed. The tractor-trailer was weighed with portable scales carried by the officer and determined to weigh 111,700 pounds. A fine of $3835 was assessed based on the weight of the tractor-trailer exceeding 35,000 pounds x 5 cents per pound. The officer transported the driver to a telephone where he called Petitioner to advise that $3835 had to be paid before the tractor-trailer could be moved.

   
   

6. Thomas C. Heinrich, sole owner of Petitioner, cashed $3835 from his Individual Retirement Account, paid the fine, and the tractor-trailer was allowed to proceed.

   
   

7. On August 26, 1986, Petitioner held a valid overweight permit issued for one year effective 11/6/85 through 11/5/86 (Exhibit 4) which allowed the tractor-trailer to operate with a maximum load of $112,000 pounds.

   
   

8. The tractor-trailer without cargo weighs approximately 36,000 pounds (Exhibit 6 and 7). The back hoe being carried August 26, 1986, weighs 52,700 pounds (Exhibit 5). Accordingly, the gross weight of the tractor-trailer and back hoe on August 26, 1986 was less than 83,000 pounds, which is much less than the 111,700 obtained using portable scales.

   
   

9. But for the expired certificate of registration, Petitioner's tractor- trailer was in compliance with the load requirements when stopped on August 26, 1986.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Section 316.545, Florida Statutes, authorizes any weight and safety officer of the Department having reason to believe the weight of a vehicle and load is unlawful, to stop the vehicle to check the weight. If the officer finds the gross weight of the vehicle exceeds the declared weight a penalty of 5 cents per pound on the difference between such weight shall be levied. That section further provides in pertinent part:

    
    

    In those cases where the commercial vehicle...is being operated over

    the highways of this State with an expired registration...the penalty herein shall apply on the basis of

    5 cents per pound on that weight which exceeds 35,000 pounds. A vehicle found in violation of this section may be detained until the owner or operator produces evidence that the vehicle has been properly registered.

    
    

12. Subsection 316.545(8) provides:

    
    

    Any person aggrieved by the imposition of a civil penalty pursuant to this section may apply to the review board for a modification, cancellation, or revocation of the penalty, and the review board is authorized to modify, cancel, revoke, or sustain such penalty.

    
    

13. Although the review board declined to modify the penalty assessed, this action is irrelevant to these proceedings which is a de novo review of the circumstances surrounding the incident.

    
    

14. Here, Petitioner received a registration certificate, tag and decals for the tag. The registration noted one expiration date and the decal for the tag noted a different, and later, expiration date. Certainly, the date on the certificate of registration is controlling nevertheless, action of state officials in issuing the registration and tag contributed significantly to the ensuing violation. For automobile registrations it is customary for the various tag offices throughout the State to send out advance notices to automobile owners that their registration expires and must be renewed. No evidence was submitted whether this practice is followed with truck registrations. However, it is clear that Petitioner received no such notice.

    
    

15. The weight of a low boy carrying a concentrated load determined by using two portable scales is obviously subject to considerable error. This is borne out by the weight of 111,700 pounds upon which the assessment was based and 83,000 pounds determined by adding the gross weight of the tractor-trailer and the equipment carried. Using the weight of 83,000 pounds to determine the penalty at 5 cents per pound over 35,000 pounds would lead to a penalty of

    $2400.

    
    

16. When all of the circumstances surrounding this violation are considered, equity and fairness demands a reduction from the maximum penalty assessed. It is, therefore

RECOMMENDED that the penalty assessed against Thomas C. Heinrich Corporation be reduced to $1200.

ENTERED this 18th day of June, 1987, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1987.

COPIES FURNISHED:

Mark A. Linsky, Esquire Linsky and Linsky

1509 Sun City Center Plaza, Suite B Sun City Center, Florida 33570

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450

Kaye N. Henderson, P. E. Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

THOMAS C. HEINRICH CORP.,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION, CASE NO. 86-4797

Respondent.

/

FINAL ORDER

The record in this proceeding has been reviewed along with the Recommended Order of the Hearing Officer, copy attached. Respondent, Department of Transportation (Department) has filed Exceptions to the Recommended Order which are considered and addressed below.

The Findings of Fact in the Recommended Order are considered correct except as addressed below and are incorporated as part of the Final Order. The Conclusions of Law are rejected.

Findings of Fact

1. The Department rejects the second sentence of Finding of Fact number 4 as being irrelevant to the issue in this cause. The issue in the instant cause is whether the Petitioner's commercial vehicle was being operated on the State highways with an expired vehicle registration and therefore subject to a penalty pursuant to Section 316.545, Fla. Stat. (1985) The fact that the discrepancy between the expiration decal on the tag and the expiration date on the registration certificate was not detected when the trailer tractor went through weigh stations between May 31, 1986,and August 26, 1986 is irrelevant in determining whether Petitioner violated 316.545, Fla. Stat. (1985).

   
   

2. The Department modifies Finding of Fact number 7 to correct what appears to he scrivener's error by omitting the "$" before the phrase "112,000 pounds".

   
   

3. The Department rejects any implication in Finding of Fact number 8 that the portable scales used by the Department's Weight and Safety Officer were inaccurate. The testimony at the hearing establishes that the scales are certified twice each year by the Department of Agriculture. (T: 94, 95, 97). However, since conflicting evidence was presented as to the weight of the loaded tractor-trailer, the credibility of the witnesses is for the hearing officer as the trier of fact. Milton v. Cochran, 147 So.2d 137 (Fla. 1962) cert. denied

   375 U.S. 869 (1963). Because there is competent substantial evidence to support the Hearing Officer's finding that the tractor-trailer weighed 36,000 pounds (Exhibits 6 & 7) and the back-hoe weighed 52,700 pounds (Exhibit 5), the Respondent's Exceptions are rejected.

   
   

   However, the Department modifies Finding of Fact number 8 to reflect a total gross weight of the loaded tractor-trailer of 88,700. The Hearing Officer calculated the gross weight as 83,000 pounds. However, the evidence adduced at hearing and relied upon by the Hearing Officer establishes the weight of the tractor-trailer as approximately 36,000 pounds (Exhibits 6 & 7), and the weight of the back hoe as 52,700 pounds (Exhibit 5). Consequently, the sum of these figures results in a gross weight of the loaded tractor-trailer of 88,700 pounds rather than 83,000 pounds.

   
   

4. The Department rejects Finding of Fact number 9 as being Immaterial to the issue in this cause. Whether Petitioner would have been in compliance with

316.545, Fla. Stat. (1985) given different factual circumstances is speculative and conjectural and not pertinent to the issue in dispute.

Conclusions of Law

The Hearing officer's conclusion that the action of the Weight Review Board is irrelevant to these proceedings is erroneous. Pursuant to Section 316.545, Fla. Stat. (1985) only the Review Board has authority to modify a penalty assessed under such statute. Procedurally, any change in a penalty would require board action.

The Hearing Officer's statement that the use of portable scales is "obviously subject to considerable error" is rejected. There was no evidence adduced as to the accuracy or inaccuracy of the portable scales utilized by the Department. Absent any competent substantial evidence, such an opinionated statement cannot be accepted by the Department.

The Hearing Officer's conclusion that applying the penalty assessment formula to the instant cause results in a penalty of $2400.00 is also erroneous. Using the gross weight of the loaded tractor-trailer of 88,700 pounds (see Department's modified Finding of Fact number 8 above) to determine the penalty at 5 cents per pound over 35,000 pounds would lead to a penalty of $2,685.00.

Section 316.545, Fla. Stat. (1985) states in pertinent part:

In those cases where the commercial vehicle . . . is being operated over the highways of this State with an expired registration . . . the penalty herein shall apply on the basis of 5 cents per pound on that weight which exceeds

35,000 pounds. (emphasis added)

Use of the word "shall" has, according to its normal usage, a mandatory connotation and nothing in 316.545, Fla. Stat. (1985) expresses an intention to the contrary. See White v. Means, 280 So.2d 20 (Fla. 1st DCA 1973).

Consequently, once it is determined that the commercial vehicle in question is being operated with an expired registration, it is incumbent upon the Department to assess a penalty calculated according to the provisions of Section 316.545, Fla. Stat. (1985). Nothing in Chapter 120 authorizes a Hearing Officer to apply principles of "equity and fairness" to reduce a mandatory civil penalty.

THEREFORE IT IS ORDERED that petitioner, Thomas C. Heinrich Corp., be assessed a penalty in the amount of $2,685.00 pursuant to Section 316,545, Fla. Stat. (1985).

DONE and ORDERED this 8th day of September, 1987.

KAYE N. HENDERSON, P.E.

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Copies furnished to:

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

VERNON L. WHITTIER, JR., ESQUIRE

Department of Transportation Haydon Burns Building, MS 5B 605 Suwannee Street

Tallahassee, Florida 32399-0455

MARK A. LINSKY, ESQUIRE

1509 Sun City Center Plaza Suite "B"

Sun City Center, Florida 33570

NOTICE OF RIGHT TO JUDICIAL REVIEW

Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Docket for Case No: 86-004797

Orders for Case No: 86-004797