STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WANDO TRUCKING, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 89-6247

) DEPARTMENT OF TRANSPORTATION )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on January 31, 1990, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: The Respondent was not represented by

legal counsel or an other qualified representative.

STATEMENT OF THE ISSUES

The issue in this case is whether the $490 fine assessed by the Respondent against the Petitioner was unwarranted or incorrect.

PROCEDURAL STATEMENT

In May, 1989, the Petitioner obtained a permit to operate a commercial vehicle transporting a load weight in excess of legal weight limits. Upon review of the permit by an employee of the Respondent at a truck weighing station, the Respondent voided the permit and assessed a $490 fine against the Petitioner for alleged violation of permit requirements. The Petitioner twice appealed the fine to the Commercial Motor Vehicle Review Board which denied the Petitioner's request to amend the penalty. The Petitioner thereafter requested formal administrative hearing.

At the hearing, the Petitioner was not represented by counsel. (An attorney filed the request for formal hearing, but did not represent the Petitioner at the administrative proceeding.) R. Douglas Oswald, Director of Marketing and Traffic for Wando Trucking, Inc., attended the administrative hearing on behalf of the Petitioner, but was not qualified to provide legal representation. No witnesses testified and no exhibits were accepted on behalf

of the Petitioner. The Respondent presented the testimony of Philip V. Witten, Elise Trawick, and Robert Person and had four exhibits admitted into evidence.

A transcript of the hearing was filed on February 12, 1990. The Respondent filed a proposed recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. On May 1, 1989, Wando Trucking, Inc. ("Wando") obtained a trip permit from the Florida Department of Transportation ("DOT") authorizing the transportation of an overweight load. Wando proposed to transport one sealed containerized cargo unit. The permit was valid for one trip from Jacksonville, Florida to the Georgia border and expired on May 5, 1989. The permit contained several special requirements, including the typing, on the cargo packer's bill of lading, of the identification number stamped on the container seal. The DOT considers a permit to be void if permit requirements are not met.

   
   

2. Packers of containerized cargo affix numbered seals to the containers. The seals are constructed so as to prevent the opening of a container without destruction of the seal. The DOT's requirement that the seal number be typed is to lessen the opportunity for a carrier to alter the cargo or substitute contraband for a sealed and permitted load.

   
   

3. On May 1, 1989, the Wando truck stopped at the DOT weigh station on I-

   95 in Yulee, Florida. Upon weighing the vehicle, the DOT employee found the truck, at 89,800 pounds, to be over the legal statutory weight of 80,000 pounds. The DOT employee examined the excess weight permit offered by the Wando driver and found that the container seal number was handwritten, across the bill of lading, rather than typed as the permit requirements stated.

   
   

4. The DOT employee completed the appropriate documentation and assessed a fine of $490. The fine was calculated at five cents per pound for the 9,800 pound overage. Wando paid the fine.

   
   

5. The evidence does not establish that the assessed fine was inappropriate. The assertion by Wando Trucking, Inc., that there was no intent to violate the permit provisions is irrelevant.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

7. Wando Trucking, Inc. does not dispute that the referenced vehicle is Permitted, by statute, to weigh 80,000 pounds and that the vehicle weighed 89,800 pounds, a difference of 9,800 pounds.

   
   

8. The Department of Transportation is authorized, with respect to highways under its jurisdiction, to permit the operation of vehicles which exceed statutory weight limits. Such written permits are issued upon the filing of an application. The Department is authorized to limit or prescribe the conditions of operation of such vehicle. No person shall violate any of the terms or conditions of such special permit. Section 316.550, Florida Statutes.

9. Section 316.545(2)(a), Florida Statutes, provides that, upon determination that the gross weight of a vehicle exceeds the weight Permitted by state law, the penalty shall be five cents per pound for the difference between the actual weight and the statutory weight. Simple multiplication of the 8,900 pound overage by five cents per pound establishes $490 as the appropriate penalty.

   
   

10. The petition for hearing asserts that Wando did not Intend to violate the permit restrictions and should not be Subjected to the full assessment. There is no evidence which establishes that the Department of Transportation acted Incorrectly in assessing the fine against the Petitioner.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Transportation enter a Final Order dismissing the petition of Wando Trucking, Inc.

DONE and RECOMMENDED this 13th day of March, 1990, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 March, 1990.

APPENDIX

The Petitioner did not file a Proposed recommended order. The following constitute rulings on Proposed findings of facts Submitted by the Respondent.

Respondent

The Respondents Proposed findings of fact numbered 1-3 are accepted as modified in the Recommended Order.

COPIES FURNISHED:

Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Paul F. Tecklenburg, Esq. Post Office Box 1430

Charleston, South Carolina 29401

Vernon L. Whittier, Jr., Esq. Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Docket for Case No: 89-006247

Orders for Case No: 89-006247