STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3247 1/

)

NORMAN B. JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 14, 1990, a formal administrative hearing was held in this case in Lakeland, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

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

Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Norman B. Jones

1221 North Galloway Road Lakeland, Florida 33809

STATEMENT OF THE ISSUES

The only factual issue in this case is whether the Superior Paving triple axle dump truck being driven by Norman Jones on February 13, 1990, on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, was being operated with its air axle up, resulting in its being over the maximum weight for its remaining tandem rear axle under Section 316.535, Florida Statutes (1989). However, this straightforward factual case also raises several legal and procedural questions, including: (1) whether the Division of Administrative Hearings has jurisdiction; (2) which agency is authorized to take final agency action in the case; (3) who are the actual parties in interest; (4) whether the parties have standing; and (5) which party bears the burden of proof.

PRELIMINARY STATEMENT

In this case, a Department of Transportation (DOT) Motor Vehicle Compliance Officer cited Superior Paving, Inc. (the company), with a violation for exceeding maximum allowable weight under Section 316.535, Florida Statutes (1989), and assessed a $387 fine. The company paid the fine and deducted the

$387 from the salary of Norman Jones, its employee who was operating the truck at the time of the citation. By letter dated May 7, 1990, Norman Jones

requested that the Commercial Motor Vehicle Review Board (the Review Board) drop or reduce the fine. The Review Board considered Jones' request on May 10, 1990, and denied it by letter dated May 15, 1990. Jones then requested a Section 120.57(1) formal administrative proceeding. The Executive Secretary of the Review Board referred Jones' request to the attorney for the DOT to initiate a Section 120.57(1) proceeding, and the DOT attorney referred the matter to the Division of Administrative Hearings.

At the final hearing on August 14, 1990, the Hearing Officer raised several preliminary questions about the case. In response to these questions, counsel for the DOT stated the DOT's position that the DOT is both the party Respondent in the case, as reflected in the caption to that point in the proceeding, and the agency to take final agency action in the case. Counsel for the DOT also related the DOT's position that the Review Board acted for the DOT in the nature of preliminary, free-form agency action when it considered and denied Jones' request that the fine be dropped or reduced. 2/ Through its attorney, the DOT also took the position both that the company was the proper party Petitioner in the case (even though the company had paid the fine and never challenged the fine or authorized Jones to challenge it for the company) and that Jones had standing to participate in the proceeding on behalf of the company. Finally, the DOT took the position that the company, acting through Jones, and designated the Petitioner to that point in the proceeding, had the burden of proof in the case. The DOT was invited to expound on these positions, and the authority for them, in its proposed recommended order.

Jones and the DOT compliance officer testified at the final hearing. The DOT introduced one exhibit in evidence, and Jones introduced two exhibits. 3/ The DOT ordered the preparation of a transcript of the final hearing, making proposed recommended orders due ten days after the filing of the transcript, which was filed on August 30, 1990. Despite difficulties resolving the factual dispute in this case, as reflected in the Findings of Fact, below, the proposed findings of fact contained in the DOT's proposed recommended order ultimately were accepted and incorporated to the extent not subordinate or unnecessary.

Mr. Jones did not submit a proposed recommended order.

FINDINGS OF FACT

1. On February 13, 1990, while traveling south on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, Patty Fagan, a DOT Motor Carrier Compliance Officer, observed a Superior Paving, Inc., dump truck traveling north on U.S. 41 with a full load of rock. She decided to check the load and, as she began to slow, she saw a second Superior Paving dump truck, also heading north with a full load of rock. She testified that the second truck was riding with its air axle up, leaving only two tandem rear axles, along with the steering axle, to bear the weight of the load.

   
   

2. Fagan continued a short distance to the south on U.S. 41 until she was able to turn around and pursue the trucks to the north. She passed the second truck between one and two miles from where she turned around and testified that the second truck still was traveling with its air axle up. Fagan pulled up behind the first truck where it had stopped in the left turn lane at the entrance of the Gardinier plant. She got out to check the first truck. Meanwhile, the second truck, driven by Norman B. Jones, pulled up behind Fagan's vehicle. According to Fagan, Jones' truck still had the air axle up.

3. According to Jones, the air axle was down at all times that he was within sight of Fagan until he pulled into the left turn lane behind Fagan's car and, while she was talking to the driver of the first truck, raised the air axle in preparation for the left turn.

   
   

4. It would be difficult for anyone, much less an experienced compliance officer like Fagan, to mistakenly think she saw Jones' truck riding with the air axle up. It is obvious and easy to see whether the air axle is up or down. Likewise, it was easy for Jones to determine whether the air axle was up or down. There is a switch and an air pressure gauge immediately to the right of the driver seat which registers 40 pounds of pressure when the air axle is down and zero when it is up. The factual issue resolves to a question of the relative credibility of Fagan and Jones.

   
   

5. Fagan wrote in her report of the incident that Jones first admitted that he had been driving with his air axle up because it was malfunctioning. The report states that Jones told her the problem was noticed when he picked up his first load in Brooksville and that he planned to have the problem fixed after his third load. She wrote that she told him he should have had it fixed before he left the yard with the first load. In fact, Jones only carried two loads that day, as usual, and never planned to carry three loads. He picked up

   both loads in Center Hill, Florida, about 60 miles northeast of Brooksville, and drove to Gardinier via I-75, also to the east of Brooksville, never going anywhere near Brooksville. Jones denied having made the statements the report attributes to him and stated that he had no reason to mention Brooksville or an alleged third load in the course of his conversation with Fagan.

   
   

6. Fagan also wrote in her report that Jones changed his story later in the conversation and claimed that the air axle worked but was slow. Fagan said her response was that the air axle should have been down by the time she passed him for the second time, after she had turned around to head north on U.S. 41. Jones also denied that he ever said the air axle was slow. He testified that the air pressure system was worked on just two weeks before the incident and that it was in perfect operating condition. Neither party adduced any documentary evidence or testimony of third persons to establish whether air pressure system repairs were done on the truck or, if so, when they were done or what the problem was.

   
   

7. Jones testified that his last load out Brooksville was "about six months ago." It is not clear whether he meant six months before the incident or six months before the hearing, which would have put it about the time of the incident, and also about the time work was done on the air pressure system. The evidence suggests the possibility that an air pressure problem arose while Jones was carrying a load out of Brooksville and that he had mentioned this to Fagan.

   
   

8. In response to questioning by counsel for the DOT, Jones first stated that it is common to have problems with the air axle and that he has had trouble with the air axle on the same truck he was driving on February 13, 1990. In his next breath, he stated that he has had no trouble with the air axle on the truck but said he did have the governor on the air pressure system replaced "about a year and a half ago." (Again, his testimony was not clear whether he meant a year and a half before the incident or before the hearing.) He also again admitted that about two weeks before the incident, the air pressure lines and valves were replaced, and the air axle line was reattached to the new valve.

9. According to Fagan, after checking the first truck, she went back to Jones' truck, asked Jones for his load ticket and, while he was looking for it in the cab, did a routine check by feeling the tires on the air axle and on the front tandem axle on the driver side. She testified that the tire on the air axle was cooler. Jones denies that Fagan ever touched or even got close to the tandem axle. Jones testified that he standing on the step to the cab when Fagan walked up and asked to see the his load ticket and that he just reached in, grabbed it off the dashboard and handed it to her. He testified that he then stepped to the ground and stood between Fagan and the rear axles and that she never walked past him.

   
   

10. Later in testimony, Fagan testified that she might have asked Jones for the vehicle registration so that she could check the registered gross weight of the vehicle, and that Jones was looking for it in the cab while she was touching the vehicle tires. But Jones countered that Fagan did not ask for the vehicle registration until later, when they were at the weigh station to which Fagan had Jones drive.

    
    

11. Jones testified that the air axle was down all the way from Center Hill except for just two times on each load when he raised it for purposes of negotiating tight turns, as permitted by the DOT's nonrule policy designed to reduce road and truck wear and tear: once when he turned onto U.S. 41; and a second time after he entered the left turn lane at the entrance of the Gardinier plant and stopped behind Fagan's car, while Fagan was talking to the driver of the first truck. However, Jones' description of his route from Center Hill to Gardinier included several other turns that would seem to have been just as tight as the two he says were the only times he raised his air axle.

    
    

12. As Jones pointed out, if the rest of his testimony is true, even if the air axle was up the entire time from when he turned onto U.S 41 until he was stopped at the entrance to the Gardinier plant, the air axle tires still would have been hot to the touch. Conversely, if Fagan's testimony that the air axle tire was cool to the touch is true, then the air axle probably was up for most, if not all, of the trip from Center Hill. No statement was taken, or testimony elicited, from the driver of the other company truck to shed light on this factual dispute.

    
    

13. Despite the difficulties presented by the evidence in this case, it is found that the DOT has proven by a preponderance of the evidence that Jones was operating the company truck he was driving on February 13, 1990, with the air axle up at least for a mile or two along U.S. 41.

    
    

14. After their conversation in the left turn lane at the Gardinier plant entrance, Fagan required Jones to drive to a weigh station. (It angered Jones that this weigh station was five miles out of Jones' way. Jones did not understand why the truck could not have been weighed at the Gardinier plant.) The scale showed that 52,540 pounds of weight was being supported by the rear tandem axles of the truck.

    
    

15. After weighing the truck, Fagan issued a citation and $387 fine to Superior Paving, Inc. The company paid the fine and deducted it from Jones' salary. The company never challenged the fine, and there is no evidence in the record that the company authorized Jones to challenge it on the company's behalf. Jones reqested that the Commercial Motor Vehicle Review Board drop or the fine reduce, which it declined to do.

    CONCLUSIONS OF LAW

    
    

    1. What Agency Takes Final Agency Action?

       
       

16. The Commercial Motor Vehicle Review Board (the Review Board) consists of three permanent members: the Secretary of the DOT; the Executive Director of the Department of Highway Safety and Motor Vehicles; and the Commissioner of Agriculture. Each permanent member can designate an authorized representative, and the Review Board can conduct business either through the permanent members, or through their designated authorized representatives, or through all of the permanent members and designated authorized representatives. See Section 316.545(7), Florida Statutes (1989); F.A.C. Rule 14A-1.002.

    
    

17. A proper party "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." Section 316.545(4)(c) and (8), Florida Statutes (1989). "The written notice of the Board's decision shall contain a statement that the decision shall become conclusive and final agency action if no request for rehearing or request for an administrative hearing . .

    . is timely received." F.A.C. Rule 14A-1.011.

    
    

18. It is concluded that the Review Board, not the Department of Transportation, is the agency that takes final agency action on a request to drop or reduce a fine assessed under Section 316.545.

    
    

19. On the other hand, the DOT is a proper party to this action. The DOT assessed the fine in issue and maintains in this proceeding that it is a valid assessment. Its position in the case is adverse to the position of the person seeking relief from the Review Board. If the DOT prevails, the fine will remain credited to the State Transportation Trust Fund, which is used to repair and maintain the roads of the state and to enforce Section 316.545.

    
    

    1. What Party Asked For Relief, and Does That Party Have Standing?

       
       

20. In this case, Norman Jones requested that the Review Board drop or reduce the $387 fine which the DOT assessed against Superior Paving, Inc. The company paid the fine, and the record does not reflect that it ever requested that the fine be reduced or eliminated. Nor does the record reflect that the company authorized Norman Jones to bring this action on behalf of the company. It is concluded that Norman Jones, not the company, requested Review Board consideration of this matter and that Jones, not the company, requested this formal administrative proceeding.

    
    

21. Section 316.545(4)(c) and (8), Florida Statutes (1989), provides: "Any person aggrieved by the imposition of" a fine under Section 316.545 may

    request relief from the Review Board. See also F.A.C. Rule 14A-1.007. Although the company deducted the $387 fine from Jones' salary (and presumably would repay Jones the $387, or the amount by which the fine is reduced, if the Review Board eliminates, or reduces, the fine), it is not clear that Jones is an "aggrieved party" under Section 316.545(4)(c) and (8), so as to acquire standing as a party under Section 120.52(12)(b), Florida Statutes (1989). But that question need not be reached in this case since the Review Board has accorded standing to Jones under Section 120.52(12)(c), Florida Statutes (1989).

    
    

    1. Which Party Has the Burden of Proof?

22. The DOT has taken the position that the other party, perceived by the DOT to be Superior Paving, Inc., has the burden of proof in this proceeding. In support of its position, the DOT cites Hillsborough County Aviation Auth. v. Taller & Cooper, Inc., 245 So. 2d 100, 102 (Fla. 2d DCA 1971): "In Florida there is a presumption that public officials properly perform their duties in accordance with the law and it is incumbent upon those challenging such performance to overcome the presumption; Hunter v. Carmichael, Fla.App.1961, 133 Se.2d 584."

    
    

23. The Hillsborough County Aviation case involved an agency decision to accept bids and award a contract in the context of competitive bidding, an area in which the courts accord agencies broad discretion. The opinion did not address the burden of proof in the context of an administrative proceeding arising out of the assessment of a fine and was not speaking of an evidentiary presumption that would affect the burden of proof in other administrative cases.

    
    

24. It is clear that, in a case to discipline a licensee, the regulating agency has the burden of proof. Cf. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Although no decisional law on the subject has been found arising out of the assessment of a fine outside the context of a regulatory licensing scheme, all of the decisions follow the general law that the burden of proof is on the party asserting the affirmative of the issue. See Balino v. Dept. of Health, etc., 348 So. 2d 349 (Fla. 1st DCA 1977). When an agency assesses a fine, and the assessment is challenged, the burden is on the agency to prove the facts necessary to sustain the assessment.

    
    

25. Due to the procedural abnormalities in this case, it comes before the Division of Administrative Hearings in an unusual posture. The fine was assessed against Superior Paving, which paid the fine, did not challenge it, and deducted it from Jones' salary. Jones is challenging the validity of the assessment so that he can be reimbursed (whether by the DOT or by his employer after it is reimbursed by the DOT). As a result, the question is whether Norman Jones stands in the shoes of his employer for purposes of deciding where to place the burden of proof. It is concluded that, since Jones has been given standing as a "person aggrieved by the imposition of" the fine in this case, the DOT is the party asserting the affirmative of the issue (i.e., the imposition of the fine) and has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the fine.

    
    

    1. Did Jones Violate Section 316.535?

    
    

26. Factually, this case was straightforward, although not easy to decide. As reflected in the Findings of Fact, it is concluded that the DOT did prove, by a preponderance of the evidence, that Jones was operating the company truck he was driving on February 13, 1990, with the air axle up for at least a mile or two along U.S. 41.

    
    

27. Under Section 316.535(3), Florida Statutes (1989), the maximum allowable total axle load for the tandem rear axle of the truck Jones was driving on February 13, 1990, was 40,000. In enforcing that provision, the DOT must allow a ten percent margin of error in weighing the vehicle, raising the maximum allowable total axle load weight, for purposes of assessing the fine, to 44,000. Section 316.545(2)(a), Florida Statutes (1989). The fine is computed at $10 for the first 1,000 pounds and 5 for each additional pound overweight. Section 316.545(3)(b), Florida Statutes (1989). Since Jones was running with a total axle load weight of 52,540 pounds, the proper amount of the fine was $387.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commercial Motor Vehicle Review Board enter a final order upholding the $387 fine it assessed against Superior Paving, Inc., in this case.

RECOMMENDED this 24th day of September, 1990, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 24th day of September, 1990.

ENDNOTES

1/ Previously in this proceeding the caption of the case was designated as "Superior Paving, Inc., v. Department of Transportation." As a result of the rulings contained in this Recommended Order, the caption is amended as reflected above.

2/ Some of these DOT positions were expressed in greater detail during an off- the-record prehearing conference conducted immediately before the hearing.

3/ Because of the manner in which the case was captioned at the time of the final hearing, the DOT exhibit is identified in the record as Petitioner's Exhibit 1, and Jones' exhibits are identified in the record as Respondent's Exhibits 1 and 2.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Norman B. Jones

1221 North Galloway Road Lakeland, Florida 33809

Elyse Trawick Executive Secretary

Commercial Motor Vehicle Review Board

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 90-003247

Orders for Case No: 90-003247