STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALMAZAN BROTHERS TRUCKING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-2088

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on May 11, 1990 in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Dewey H. Varner, Esquire

Varner, Cole & Seaman

2601 Tenth Avenue, North, Suite 410 Lake Worth, Florida 33461

For Respondent: Vernon T. Whittier, Jr., Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUES

The issue presented is whether the fine proposed by the Department of Transportation is appropriate.

PRELIMINARY STATEMENT

On October 6, 1989, Respondent imposed a fine on Petitioner for the alleged overweight of Petitioner's vehicle and failure to display proper identification, pursuant to Section 316.545, Florida Statutes. Petitioner appealed the fine to the Commercial Motor Vehicle Review Board which informed Petitioner by certified letter dated December 19, 1989, that a refund of the fine imposed upon Petitioner was not appropriate.

On December 28, 1989, Petitioner requested a formal hearing, pursuant to Section 120.57(1), Florida Statutes, and on March 29, 1990, Respondent requested the Division of Administrative Hearings to appoint a Hearing Officer to receive the matter.

At the formal hearing, Petitioner testified on his own behalf and offered two exhibits which were received into evidence. Respondent presented the testimony of two witnesses and offered three exhibits which were received into evidence. A transcript of the proceeding was received on May 22, 1990. Proposed findings of fact were due on June 1, 1990. Respondent timely filed proposed findings of fact. Petitioner did not likewise file. A ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order.

FINDINGS OF FACT

1. On or about September 11, 1989, a commercial, dump truck owned by Petitioner, Alamazan Brothers Trucking, Inc., was travelling on State Road 807. Mr. Michael Roberts, Safety and Hazardous Materials Officer for Respondent, Department of Transportation, noticed that the truck did not have the required identification on the door and stopped the truck for further investigation.

   
   

2. After the truck stopped, Mr. Roberts noted that the truck possessed an expired temporary license tag, and the driver did not have a valid registration for the truck.

   
   

3. Mr. Roberts, then, weighed the truck with his portable scale and calculated a gross weight of 65,900 pounds.

   
   

4. Mr. Roberts gave the driver the opportunity to contact the owner of the truck about the registration and, in accordance with policy of the Department, allowed the owner over one hour to produce a valid registration. A representative of the owner appeared and showed Mr. Roberts a duplicate registration certificate purchased the same day as the incident which indicated that the authorized gross weight for the truck was 24,680 pounds.

   
   

5. Mr. Roberts made the determination that the registration was not valid at the time of the stop and imposed a fine for overweight of $1,545. The fine was calculated for the amount of the gross weight in excess of 35,000 pounds times five cents per pound. Existent law establishes that, for the purposes of calculation of a penalty such as the one at issue, the authorized gross weight for an unregistered vehicle is 35,000 pounds. An additional $50 was imposed as the fine for not having the required identification on the door of the truck. The total penalty of $1,595 was paid under protest.

   
   

6. However, Petitioner did, in fact, have a valid registration on the day of the stbp. Through administrative delay, the registration certificate had not been mailed to Petitioner.

   
   

7. On or around September 7, 1989, Petitioner purchased the truck and a temporary tag was issued to Petitioner by the dealer from which he purchased the truck. At that time, an application for registration was made to the Department of Highway Safety and Motor Vehicles. The application was for a registration authorizing a gross weight of 64,000 pounds. Petitioner had not received the permanent tag or registration by the date the stop occurred.

   
   

8. After Petitioner was alerted at the stop, Petitioner obtained a duplicate registration within the time allotted to him by Respondent. This duplicate, the one shown to Mr. Roberts on the day of the stop, indicated an authorized gross weight of 24,680 pounds, an obvious typographical error. The gross weight did not match the gross weight applied for, instead, it duplicated the amount of the empty weight into the gross weight category. On September 13,

   1989, Petitioner returned the form to the issuer and requested a corrected duplicate registration. The second duplicate also was in error. This time the form indicated the correct gross weight of 64,000 pounds, but, also, repeated that gross weight amount in the empty weight category. At the hearing, Petitioner also presented the application for registration which indicated it had applied for and was taxed for a gross weight of 64,000 pounds. It was only due to administrative delay that the correct registration was not presented at the time of the stop.

   
   

9. However, no competent evidence was received which indicated that the truck did possess the required identification on the door, and Mr. Robert's testimony about the lack of such identification is deemed credible.

   
   

10. Although the correct gross weight for which Petitioner is licensed is 64,000, his load at the time of the stop was 65,900 or 1,900 in excess of his 64,000 pound authorized amount. At five cents a pound his penalty for overweight should be $95.00 and not $1,545.00. The $95.00 plus the $50.00 for the failure to display the required identification yields a corrected fee of

    $145.00 and a refund due to Petitioner of $1,400.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

12. 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 authorized weight. Simple multiplication of the 1,900 pound overage by five cents per pound establishes $95.00 as the appropriate penalty for an overweight load.

    
    

13. Section 316.3025, Florida Statutes, authorizes the imposition of

    $50.00 fine for a violation of Section 316.3027, Florida Statutes. Section 316.3027(1) provides as follows:

    
    

    1. There shall be displayed on each side of the power unit of every commercial motor vehicle, as defined in

       s. 207.002, the name of the vehicle owner or motor carrier, the city or town or place of domicile of the vehicle owner or motor carrier, and the vehicle unit number, in letters that contrast in color with the background and are readily visible and readable from a distance of 50 feet.

       
       

       The unrefuted proof demonstrated that Petitioner did not have displayed the required identification at the time of the stop. Thus, the imposition of the

       $50.00 fine is appropriate.

       
       

14. The sum of the corrected fine for overweight of $95.00, plus the fine of $50.00 for failure to display the required identification, is an appropriate fine of $145.00. A refund of $1,400 is due Petitioner from Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the Department of Transportation issue a Final Order correcting the fine imposed on Petitioner, establishing the appropriate fine at

$145.00 and refunding $1,400 to Petitioner.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990.

JANE C. HAYMAN

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 5th day of June, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2088

The following represents the rulings on the proposed findings of fact submitted by the parties. The rulings are by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact portion of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate.

RESPONDENT

1. Adopted in relevant part in paragraphs 1,2 and 3.

2. Adopted in relevant part in paragraphs 4,5 and 9.

3. Adopted in relevant part in paragraphs 6,7,8 and 10.

COPIES FURNISHED:

Dewey H. Varner, Esquire Varner, Cole & Seaman

2601 Tenth Avenue, North, Suite 410 Lake Worth, Florida 33461

Vernon T. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary Attn: Eleanor F. Turner Department of Transportation

Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Robert Scanlan

Interim General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 90-002088

Orders for Case No: 90-002088