STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMMERCIAL MOTOR VEHICLE )

REVIEW BOARD, DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4523

) PRECIPITATOR SERVICES GROUP, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on October 24, 1989, in Tallahassee, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David M. Maloney

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602

Tallahassee, Florida 32399-1050

For Respondent: Carl R. Nidiffer, President

Precipitator Services Group, Inc. Post Office Box 339

Elizabethton, Tennessee 37644 STATEMENT OF THE ISSUES

The issue is whether Respondent violated Section 316.545, Florida Statutes, in operating a tractor-trailer combination in violation of the conditions of a trip permit issued by the Department of Transportation.

PRELIMINARY STATEMENT

On April 12, 1989, Petitioner issued to Respondent a trip permit, which, subject to certain conditions, allowed Respondent to transport a crane by tractor-trailer on Interstates 95, 295, and 10 from the Georgia line to the Alabama line.

On April 14, 1989, Petitioner, after inspecting Respondent's vehicle, issued a Load Report and Field Receipt. The report states that Respondent's vehicle was 47,780 pounds overweight and assesses a penalty of $2389. The report confirms receipt of payment of the penalty under protest.

On the same date, Petitioner issued to Respondent a new trip permit, which, due to the deletion of one of the conditions attached to the first trip permit, allowed the tractor-trailer to be operated for the remainder of the trip.

Respondent requested a refund by letter dated May 5, 1989. By letter dated May 26, 1989, Petitioner informed Respondent that the Board would consider his protest at its June 8 meeting.

By letter dated June 9, 1989, Petitioner informed Respondent that it would not issue a refund. Respondent requested a rehearing by letter dated June 15, 1989. By letter dated June 30, 1989, Petitioner notified Respondent that the Board would rehear the matter at its July 13 meeting. By letter to Respondent dated July 18, 1989, Petitioner announced that it would not issue a refund.

Respondent requested a hearing by letter dated August 2, 1989.

At the hearing, Petitioner called four witnesses and offered into evidence three exhibits. Respondent called one witness and offered into evidence two exhibits. All exhibits were admitted into evidence. Petitioner filed a proposed recommended order. Treatment accorded the proposed findings is set forth in the appendix.

FINDINGS OF FACT

1. Respondent owns and operates a tractor-trailer combination that it uses for hauling a large crane. As configured at the time in question, the gross vehicle weight was 127,780 pounds, which is distributed over one steering axle, a four-axle combination at the rear of the trailer, and a three- axle combination between the other axles. The four-axle combination bore 60,280 pounds. The outerbridge of the vehicle, which is the distance from the front axle to the rear axle, was over 70 feet.

   
   

2. Respondent, which is a small company located in Tennessee, transports its crane throughout the southeastern portion of the United States. Respondent employs a company known as Comchek to secure the necessary permits for the trips.

   
   

3. In this case, Comchek obtained for Respondent a Trip Permit dated April 12, 1989. The permit states that the trip is from the Georgia line to the Alabama line on Interstates 95, 295, and 10. The permit notes that the vehicle is 75 feet long, has eight axles, and weighs 135,000 pounds. One of the special requirements on the permit states: "If overweight, a max (3)000 axles allowed per grouping with a minimum of 10 feet to next adjacent axle, center to center." The "000" represents a graphic depiction of three axles.

   
   

4. Respondent's vehicle did not meet the axle-grouping requirement. Less than 10 feet separated the four axles in the rear from each other. Thus, the vehicle, if overweight, violated this condition of the permit.

   
   

5. The permit contains only two references to weight. One notes the gross weight. The other is in a special condition and requires that overweight vehicles obtain an 80,000 pound license tag. Although the Trip Permit does not clearly disclose on its face that any weight over 80,000 pounds is overweight, Respondent's representatives were on notice that their long and heavy vehicle exceeded the normal weight restrictions so as to be classified as "overweight." The permit's reference to 135,000 pounds cannot be construed to set the standard over which a vehicle would be overweight. Otherwise, the permittee could use

   the permit to transport a 300,000 pound load on an eight-axle vehicle as long as the vehicle had no axle groupings of more than three.

   
   

6. The failure to obtain the proper permit was the fault of Respondent or its agent, Comchek. Either Respondent did not communicate the axle groupings to Comchek or Comchek did not communicate them to Petitioner. In either event, through no fault of Petitioner, the Trip Permit obtained by Respondent was violated the moment the vehicle crossed the Florida line.

   
   

7. Inspecting the vehicle at the Sneads inspection station at 6:53 a.m. on April 14, 1989, Petitioner's representatives discovered the violation. The Load Report and Field Receipt of the same date, which cites a violation of Section 316.545, Florida Statutes, states that the gross weight of 127,780 pounds exceeds the legal weight of 80,000 pounds by 47,780 pounds. The resulting penalty is $2389. The receipt acknowledges payment under protest.

   
   

8. At 9:53 a.m. on the same date, Petitioner issued to Respondent a second Trip Permit that suspended the requirement of 10 feet between axle groupings. Petitioner released the vehicle at 11:05 a.m., and the vehicle completed the remainder of its trip in Florida without incident.

   
   

9. The expedience with which Petitioner issued the second Trip Permit was largely because Respondent had already crossed the bridges that were most vulnerable to excessive loads. However, due to the length of the outerbridge and the number and distribution of axles, Petitioner's expert determined that Petitioner would have, after computer analysis, issued a permit for the vehicle as originally configured, if the proper information had been supplied.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1).

    
    

11. Petitioner must prove by clear and convincing evidence that Respondent has violated applicable law. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

12. Section 316.535(4), Florida Statutes, provides that the overall gross vehicle weight on the Interstate system is 80,000 pounds, regardless of the number of axles or their groupings. The statute provides a formula that results, in this case, to a maximum load on the four-axle group less than 60,000 pounds. The subject vehicle exceeded both of these limitations.

    
    

13. The April 12 Trip Permit allowed the vehicle to exceed the statutory weight limits, but permitted no more than a three-axle grouping with a separation of at least 10 feet between groupings. The vehicle violated this condition and thereby invalidated the permit.

    
    

14. Section 316.545(3), Florida Statutes, provides:

    
    

    Any person who violates the overloading provisions of this chapter shall be conclusively presumed to have damaged the highways of this state by reason of such overloading, which damage is hereby fixed as follows:

    (b) Five cents per pound for each pound of weight in excess of the maximum herein

    provided when the excess weight exceeds 200 pounds.

    
    

15. Although Section 316.545(8), Florida Statutes, allows the Board to "modify," as well as cancel, revoke, or sustain the penalty, the statutes fail to provide guidelines for the exercise of this discretion. In the face of the conclusive presumption for the fact and amount of penalty, there is no statutory basis for recommending a lesser penalty.

RECOMMENDATION

Based on the foregoing, it is recommended that the Commercial Motor Vehicle Review Board enter a Final Order finding Respondent guilty of violating the above-cited statutes and imposing a fine of $2389 or such lesser amount as the Board may deem appropriate.

DONE and ORDERED this 13th day of December, 1989, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4523

Treatment Accorded Proposed Findings of Petitioner 1-6: adopted or adopted in substance.

7 and 12: rejected as recitation of testimony, argument, and not finding of

fact.

8-11: rejected as subordinate.

13-16: adopted or adopted in substance.

17: rejected as against the greater weight of the testimony of DOT's expert witness, Larry H. Davis. There is no evidence that the outerbridge was only 51 feet. There is conflicting evidence as to the length of the outerbridge, which is at least 64 feet. The diagram that Respondent gave to Petitioner in applying for the permit states that the vehicle length is 75 feet. Subtracting the distance of five feet and three inches between the centerline of the rearmost axle and the rear extreme of the vehicle, the outerbridge is almost 70 feet.

However, adding up the confusing distances given on the diagram, which among other shortcomings is clearly not drawn to scale, the total outerbridge is 54 feet. The distance between the centerline of the three-axle grouping and the four-axle grouping was 30 feet. The distance between the first and fourth axle in the rear is about 13 feet. The distance between the steering axle and the rearmost of the three-axle group is about 21 feet.

COPIES FURNISHED:

David M. Maloney

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602

Tallahassee, Florida 32399-1050

Carl R. Nidiffer, President Precipitator Services Group, Inc.

P.O. Box 339 Elizabethton, TN 37644

Ben Watt Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Elyse S. Trawick, Executive Secretary Commercial Motor Vehicle Review Board Department of Transportation

605 Suwanee Street

Tallahassee, Florida 32399-0450

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

COMMERCIAL MOTOR VEHICLE REVIEW BOARD, DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. DOAH CASE NO. 89-4523

PRECIPITATOR SERVICES GROUP, INC.,

Respondent.

/

FINAL ORDER

Precipitator Services Group, Inc., Respondent, was fined by the Department of Transportation on July 14, 1989 for operating an overweight vehicle without the proper permit. Pursuant to Section 316.545, Florida Statutes (1987), Respondent appealed to the Commercial Motor Vehicle Review Board. The appeal

was referred to the Division of Administrative Hearings for an administrative hearing.

A hearing was held October 24, 1989. The Hearing Officer entered a Recommended Order December 13, 1989, a copy of which is attached hereto. No exceptions to the Recommended Order were received. The Hearing Officer's Recommended Order is considered correct both in fact and law is adopted.

The Hearing Officer's Recommendation is also adopted with the exception of that provision recommending that the Commercial Motor Vehicle Review Board enter a Final Order. It is the Department of Transportation which issues the Final Order, not the Commercial Motor Vehicle Review Board. Therefore, it is

ORDERED that the fine of $2389 levied was proper.

IT IS FURTHER ORDERED that the instant cause is remanded to the Commercial Motor Vehicle Review Board to impose a fine of $2389 or such lesser amount as the Board may deem appropriate pursuant to the authority granted the Board in Section 316.545(8), Florida Statutes (1987).

DONE AND ORDERED this 24th day of January, 1990.

BEN G. WATTS, P. E.

Secretary

Department of Transportation Haydon Burns Building Tallahassee, Florida 32399

COPIES FURNISHED:

Robert E. Meale, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

David N. Maloney

Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602

Tallahassee, Florida 32399-1050

Carl R. Nidiffer, President Precipitator Services Group, Inc. Post Office Box 339

Elizabethton, Tennessee 37644

The following information is required by law to be included in all Final Orders:

Judicial review of agency final orders 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, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within thirty (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: 89-004523

Orders for Case No: 89-004523