STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6693

)

MARTIN LEASING INC., )

)

Respondent, ) 1/

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on February 13, 1991, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Vernon L. Whittier, Esq.

Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450 For Respondent: No appearance.

STATEMENT OF THE ISSUES

The issue for determination is whether the Commercial Motor Vehicle Review Board's decision in this matter is proper; a determination that necessarily requires a finding of whether Respondent is liable for payment of a civil penalty for commission of the infraction of interstate operation of a commercial motor vehicle without first obtaining a fuel use permit.

PRELIMINARY STATEMENT

Petitioner Department of Transportation (DOT) notified Respondent of the Commercial Motor Vehicle Review Board's decision to deny Respondent's request for a refund of a $50 civil penalty and a $45 fuel use permit. Petitioner was apprised of the opportunity to request formal administrative proceedings regarding the decision. Respondent requested a formal hearing.

Thereafter the matter was transferred to the Division of Administrative Hearings for conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, DOT presented the testimony of one witness and one evidentiary exhibit. No appearance was made on behalf of Respondent and no evidence was presented on his behalf.

No transcript of the final hearing was provided by the parties. Proposed findings of fact were submitted by Petitioner and are addressed in the appendix to this recommended order. Proposed findings were not timely submitted by Respondent and none had been received on his behalf at the time of the preparation of this recommended order.

FINDINGS OF FACT

1. On March 17, 1990, Respondent's driver, Thomas Martin, was driving North on Interstate Highway 95 (1-95) in Respondent's 1985 Peterbilt three axle diesel truck. Martin stopped the vehicle at Petitioner's weigh station located on 1-95 near Yulee, Florida.

   
   

2. Petitioner's station law enforcement personnel observed that there was no fuel tax identification on the truck and that Martin had no temporary fuel tax permit.

   
   

3. The truck was registered in the State of Georgia and Martin informed station personnel that he was only going a short distance into Georgia to have repairs made to the truck. Further, he stated to personnel at the station that he thought the weigh station would be closed that day.

   
   

4. Between the weigh station's location on the interstate and the boundary with the State of Georgia, there are no exits from 1-95. Vehicles traveling northbound are required to drive into Georgia before they can exit the interstate highway. A median crossing at the weigh station permits only law enforcement and emergency vehicles to cross over to the southbound lane of the interstate prior to entry into Georgia.

   
   

5. Martin was assessed a civil penalty by weigh station law enforcement personnel of $50 as a result of Respondent's failure to comply with the State of Florida's fuel tax registration requirements. Further, Martin was then issued a temporary fuel tax permit for a fee of $45 to enable the vehicle to proceed from the weigh station.

   
   

6. Martin requested that the Commercial Motor Vehicle Review Board review the civil penalty assessment. Subsequently, the Board met on April 12, 1990, and reviewed civil penalty assessed against Martin. The Board determined that a refund of the penalty to Martin was not appropriate and, on April 24, 1990, Martin requested a formal administrative hearing.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Any attempt by a regulatory agency to discipline a licensee places the burden of proof of the licensee's violation, through "clear and convincing evidence," upon the agency. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

9. In the context of assessment of a fine outside a regulatory licensing scheme, decisions generally place the burden of proof upon the party asserting the affirmative of an issue. See, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

10. When an agency assesses a fine which is challenged, the agency must assume the burden of proof of facts sustaining that assessment. The DOT, as the party asserting the affirmative of the issue of the propriety of the fine assessed in this matter, has the burden of proving by a preponderance of the evidence, facts sufficient to support the fine's imposition. See, Department of Transportation v. Norman B. Jones, DOAH Case No. 90-3247, Recommended Order entered September 24, 1990, adopted by Final Order entered February 4, 1991.

    
    

11. The Commercial Motor Vehicle Review Board is created pursuant to Section 316.545(7), Florida Statutes, which reads in pertinent part as follows:

    
    

    (7) There is created within the Department of Transportation the Commercial Motor Vehicle Review Board, consisting of three permanent members who shall be the secretary of the Department of Transportation, the executive director of the Department of Highway Safety and Motor Vehicles, and the Commissioner of Agriculture, or their authorized representatives, which may review any penalty imposed upon any vehicle or person under the provisions of this chapter relating to weights imposed on the highways by the axles and wheels of motor vehicles, to special fuel and motor fuel tax compliance, or to violations of safety regulations.

    
    

12. Section 316.545(8), Florida Statutes, authorizes the Commercial Vehicle Review Board to modify, cancel, revoke or sustain any penalty for which review is sought. In the event that the penalty is sustained and subsequently challenged in a Chapter 120 hearing, authority for final agency action adopting or rejecting recommendations of the hearing officer rests with DOT. See, final order issued in Jones, supra.

    
    

13. Section 207.002(2), Florida Statutes, defines a commercial motor vehicle as follows:

    
    

    (2) "Commercial motor vehicle" means any vehicle not owned or operated by a governmental entity which uses special fuel or motor fuel on the public highways; and which has a gross vehicle weight in excess of 26,000 pounds, or has three or more axles regardless of weight, or is used in combination when the weight of such combination exceeds 26,000 pounds gross vehicle weight. The term excludes any vehicle owned or operated by a coordinated community transportation provider as defined in s. 427.011 or by a private operator that provides public transit services under contract with such a provider.

14. Further, Section 207.002(9), Florida Statutes, provides a definition of the term "Special fuel" as follows:

    
    

    (9) "Special fuel" means any liquid product or gas product or combination thereof, including, but not limited to, all forms of fuel known or sold as diesel fuel, kerosene, butane gas, or propane gas and all other forms of liquified petroleum gases, except those defined as "motor fuel," used to propel a motor vehicle.

    
    

15. Clearly, the evidence presented at the final hearing establishes that the vehicle driven by Martin was a commercial motor vehicle and used a propellant known as diesel fuel which falls within the statutory definition of "Special fuel".

    
    

16. Section 207.004(1)(a), Florida Statutes, places the following requirement on commercial vehicles such as the one driven by Martin:

    
    

    (1)(a) No motor carrier shall operate or cause to be operated in this state any commercial motor vehicle, other than a Florida-based commercial motor vehicle which travels Florida intrastate mileage only, which uses special fuel or motor fuel until such carrier has registered with the department and has been issued an identifying device for each vehicle operated. There shall be a fee of $4 per year or any fraction thereof for each such identifying device issued. The identifying device shall be provided by the department and must be conspicuously displayed on the commercial motor vehicle while it is being operated on the public highways of this state. The transfer of an identifying device from one vehicle to another vehicle or from one motor carrier to another motor carrier is prohibited. Unused identifying devices purchased for the year December 1, 1987, through November 30, 1988, may be exchanged for an equal number of identifying devices for the next ensuing reporting period at no charge.

    
    

17. In the absence of display of the "identifying device" required by Section 207.004(1)(a), Florida Statutes, a motor carrier may comply with Section 207.004(4), Florida Statutes, which reads as follows:

    
    

    (4) A motor carrier prior to operating a commercial motor vehicle on the public highways of this state must display an identifying device as required under subsection (1) or must obtain an emergency or trip permit or annual permit for that vehicle. An emergency or trip permit shall expire within 10 days after date of issuance. The cost of an emergency or trip permit shall be

    $45, which shall exempt the vehicle from the payment of the motor fuel or special fuel tax imposed under this chapter during the term for which the permit is valid. However, the vehicle shall not be exempt from paying the fuel tax at the pump.

    
    

18. Assessment of a penalty upon discovery of noncompliance with requirements of Section 207.004, Florida Statutes, is provided by Section 316.545(4)(a) and (b), Florida Statutes, which, in pertinent part, reads as follows:

    
    

    (4)(a) No commercial vehicle . . . shall be operated over the highways of this state unless it has been properly registered under the provisions of s. 207.004. Whenever any law enforcement officer . . . upon inspecting the vehicle or combination of vehicles, determines that the vehicle is in violation of

    s. 207.004, a penalty in the amount of $50 shall be assessed, and the vehicle shall be detained until payment is collected by the law enforcement officer.

    (b) In addition to the penalty provided for, in paragraph (a), the vehicle may be detained until the owner or operator of the vehicle furnishes evidence that the vehicle has been properly registered pursuant to s 207.064.

    Any officer or agent of the Department of Transportation may issue an emergency or trip permit and collect the appropriate fee as provided for in s. 207.004(4).

    Notwithstanding the provisions of subsection (6), all permit fees collected pursuant to this paragraph shall be transferred to the Department of Highway Safety and Motor Vehicles to be allocated pursuant to s.

    207.026.

    
    

19. The proof establishes the propriety of the civil penalty assessed against Martin and the subsequent affirmation of that penalty by the Commercial Motor Vehicle Review B6ard.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered confirming the imposition of a civil penalty of $50 upon Respondent and affirming Respondent's payment of $45 for a fuel use permit in conjunction with the assessment of the civil penalty.

DONE AND ENTERED this 14th day of March, 1991, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1991.

ENDNOTES

1/ Previously in this proceeding the caption of this case designated Martin Leasing, Inc., as Petitioner. As the result of rulings contained in this Recommended Order, the style of this matter is restated to reflect the status of the Department of Transportation as Petitioner.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of

fact submitted by the parties. Petitioner's Proposed Findings. 1.-2. Adopted in substance. Respondent's Proposed Findings. None submitted.

COPIES FURNISHED:

Vernon L. Whittier, Esq. Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450

Martin Leasing, Inc.

Route # 3

Box 152A

Nichols, GA 31554

Thomas Martin

P.O. Box 624 Yulee, FL 32097

General Counsel

Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450

Ben G. Watts Secretary

Haydon Burns Building 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 to submit written exceptions. You should consult with 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: 90-006693

Orders for Case No: 90-006693