STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6692

) LITTLE DONKEY ENTERPRISES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice, a formal hearing was held in this case on February 8, 1991. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing was held in the Offices of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr.

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

Tallahassee, Florida 32399-0458 For Respondent: No Appearance

STATEMENT OF ISSUES

The issues in this case concern the question of whether Respondent is subject to the payment of a $2,078 fine for violation of Section 316.545, Florida Statutes. That statutory provision relates to operation of a commercial vehicle in Florida without appropriate registration.

PRELIMINARY STATEMENT

While traveling through Florida a commercial vehicle operated by Respondent was inspected. Following inspection a report was made by Petitioner indicating that the commercial vehicle did not have appropriate registration. This led to a charge of violation of Section 316.545, Florida Statutes, alluded to in the Statement of Issues. Respondent was afforded the opportunity to contest the

$2,078 that was being levied against it through consideration by the Commercial Motor Vehicle Review Board. Respondent requested review of the fine. That review was made and a decision reached by the Board which was adverse to the Respondent. Opportunity was presented for rehearing by the Board. Through rehearing the request for relief from the fine was denied. This led to an opportunity by the Respondent to request a hearing pursuant to Section 120.57,

Florida Statutes. That request was made. The case was forwarded to the Division of Administrative Hearings and the formal hearing described in this recommended order ensued.

Although Respondent had asked for the formal hearing and notice had been provided, Respondent did not attend the hearing. Nonetheless, Petitioner made a prima facie showing of the reasons for its assessment. A transcript of the hearing was prepared and filed with the Division of Administrative Hearings on February 15, 1991. The court reporter in the case, Patricia M. Brewer, according to a copy of correspondence received with the original transcript, made Respondent aware of the filing of the transcript by correspondence dated February 15, 1991. Petitioner filed a proposed recommended order on February 27, 1991. That proposed recommended order has been considered in preparing the recommended order. Facts in the proposed recommended order are commented on in an Appendix to the Recommended Order.

FINDINGS OF FACT

1. On April 9, 1990, a commercial vehicle operated by Respondent, as carrier, was stopped and inspected by Petitioner's inspector Deborah Charlene Andrews. This inspection took place in Jackson County, Florida.

   
   

2. The commercial vehicle operated by Bobby Charles Alphin was weighed. It was determined that the gross vehicle weight was 76,560 pounds.

   
   

3. Before entering Florida the commercial vehicle in question had been issued a fuel use trip permit effective April 8, 1990 through April 18, 1990.

   By contrast the commercial vehicle did not have either an apportioned, 10-day or single-trip vehicle registration which would allow it to operate in Florida on April 9, 1990.

   
   

4. A copy of the fuel use emergency trip permit referred to before is found as Petitioner's Exhibit No. 1, admitted into evidence.

   
   

5. A copy of the apportioned vehicle registration and identification cab card for the vehicle may be found as Petitioner's Exhibit No. 2, admitted into evidence. It does not reflect registration in Florida in the apportionment. Florida records do not reveal that a 10-day temporary International Registration Plan (I.R.P.) trip registration had been issued or a single trip permit issued registering the commercial vehicle in question. In the absence of such a registration allowing the trip in Florida, the inspector issued a trip permit registration upon the payment of a $30.00 fee as referred to in Petitioner's Exhibit No. 4, admitted into evidence. This exhibit is a copy of the I.R.P. trip permit. The trip permit that was issued allowed operation in Florida for

   10 days.

   
   

6. A copy of the load report and field receipt executed by the inspector may be found as Petitioner's Exhibit No. 3, admitted into evidence, which reflects the gross vehicle weight and the fact that this exceeded the legal weight of 35,000 pounds and the assessment a $.05 per pound fine for the weight above the legal weight. That fine is $2,078 for being overweight in the amount of 41,560 pounds. Again that overweight amount is derived in subtracting the allowed weight of 35,000 pounds from the gross vehicle weight of 76,560 pounds.

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Petitioner seeks to levy a fine against Respondent for violating Section 316.545, Florida Statutes. That provision allows the imposition of a fine in the amount of $.05 per pound for any weight exceeding 35,000 pounds related to commercial vehicles operating in Florida without appropriate registration. The vehicle in question did not have appropriate registration while operating in Florida. It exceeded the amount of allowed weight, which is 35,000 pounds, by 41,560 pounds. Therefore it is subject to fine in the amount of $2,078.

RECOMMENDATION

Based upon the consideration of the facts found and in view of the conclusions of law reached, it is,

RECOMMENDED:

That a Final Order be entered which fines the Respondent in the amount of

$2,078 for violation of Section 316.545, Florida Statutes.

DONE and ENTERED this 12th day of March, 1991, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 12th day of March, 1991.

APPENDIX

The facts as proposed by the Petitioner are subordinate to fact found. COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458

Philip R. Polachek, General Manager Little Donkey Enterprises, Inc.

Post Office Box 822 Estacada, OR 97023

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which top submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-006692

Orders for Case No: 90-006692