STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1708

) FORESTRY RESOURCES, INC., and ) CARMICHAEL TRUCK LEASING CORP., )

)

Respondents. )

)

RECOMMENDED ORDER

This cause came before the undersigned for entry of a Recommended Order based upon a Joint Stipulation of Facts.

APPEARANCES

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

Assistant General Counsel

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

Tallahassee, Florida 32399-0450

For Respondents: William L. Bromagen, Esquire

Blackwell & Walker, P.A. 2400 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131

STATEMENT OF THE ISSUES

The issue presented is whether Respondents' request for a refund of a penalty assessed against them for operating a commercial vehicle with an expired license registration should be granted.

PRELIMINARY STATEMENT

Respondents paid to Petitioner a penalty assessed against them in the amount of $3,000 for driving a commercial vehicle on the highways in the State of Florida with an expired vehicle registration. Respondents subsequently requested a refund of that penalty. The Commercial Motor Vehicle Review Board denied their request for a refund on December 19, 1990, and Respondents timely requested a formal hearing regarding that denial. This matter was subsequently transferred to the Division of Administrative Hearings for the conduct of that formal proceeding. By Notice of Hearing entered April 10, 1991, the final hearing in this cause was scheduled to be conducted on June 27, 1991, in Miami, Florida.

Based upon Petitioner's Prehearing Statement filed June 19, 1991, Respondents' Unilateral Pre-Hearing Stipulation filed June 19, 1991, and on the agreement of the parties during a telephonic prehearing conference conducted on June 21, 1991, there are no longer any disputed issues of material fact involved in this proceeding. Section 120.57, Florida Statutes, provides that an informal proceeding is available where there are no disputed issues of material fact unless the parties otherwise agree. The parties hereto have agreed that jurisdiction should be retained by the Division of Administrative Hearings for the entry of a recommended order based upon a stipulated statement of facts. A Joint Stipulation of Facts was filed in this cause on July 15, 1991, and the parties have filed proposed recommended orders.

STIPULATED FACTS

1. A commercial vehicle leased by CARMICHAEL TRUCK LEASING CORP. to FORESTRY RESOURCES, INC., was stopped by Officer Burroughs of the Department of Transportation on October 12, 1990, on I-75 in Lee County, Florida.

   
   

2. Following an inspection, a check of the registration, and weighing with a portable unit, Officer Burroughs issued Load Report and Field Receipt No. 73372J, assessing a fine of $3,000 against Forestry Resources, Inc.

   
   

3. The commercial vehicle's VIN is IM2N179Y8FA097483. The vehicle's license registration showed a gross vehicle weight of 80,000 pounds and had an expiration date of May 31, 1990. The portable scale weight of the vehicle on October 12, 1990, was 95,000 pounds. Using the statutory weight of 35,000 pounds for an expired registration, the penalty was assessed on the difference, 60,000 pounds at 5 cents a pound, resulting in a penalty of $3,000.

   
   

4. CARMICHAEL is a truck leasing company which at all times relevant hereto maintained a large fleet of vehicles in the State of Florida. Each of those vehicles, with the exception of the subject vehicle, was registered annually with renewal in December.

   
   

5. CARMICHAEL was unaware that the subject vehicle was scheduled for renewal by June 1. As a result, the vehicle's registration was inadvertently allowed to expire.

   
   

6. However, at all times prior to June 1, 1990, and immediately upon learning of expiration of the license registration, CARMICHAEL maintained licensing for the subject vehicle at a gross volume weight of 80,000 pounds.

   
   

7. Upon receipt of notice of the registration expiration, CARMICHAEL immediately renewed the license of the subject vehicle on October 22, 1990, ten days after the instant fine was levied.

   
   

   CONCLUSIONS OF LAW

   
   

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

9. Section 316.545(2)(b), Florida Statutes, provides, in part, as follows: In those cases when the commercial vehicle . . .

   is being operated over the highways of the state with an expired registration or with no

   registration from this or any other jurisdiction or is not registered under the applicable provisions of chapter 320, the penalty herein shall apply on the basis of 5 cents per pound

   on that weight which exceeds 35,000 pounds. . . .

   A person who has been assessed a penalty pursuant to this paragraph for failure to have a valid vehicle registration certificate pursuant to the provisions of chapter 320 is not subject to the delinquent fee authorized in s. 320.07 if such person obtains a valid registration certificate within 10 working days after such penalty was assessed.

   
   

   In this case, it has been stipulated that Respondents operated a commercial vehicle over the highways of this state with an expired registration, that the Department assessed a fine against Respondents in the amount of 5 cents per pound on that weight which exceeded 35,000 pounds, and that the fine assessed against and paid by Respondents was in the amount of $3,000.

   
   

10. Section 316.545(8), Florida Statutes, provides that any person aggrieved by the imposition of a civil penalty pursuant to Section 316.545 may apply to the Commercial Motor Vehicle Review Board and that Board may modify, cancel, revoke, or sustain such penalty. Respondents argue that the penalty assessed against them in this cause should be modified. Respondents argue that since they obtained a valid vehicle registration within 10 working days after the penalty was assessed against them, they should only be fined on the difference between 80,000 pounds (the vehicle's registered weight) and 95,000 pounds (the vehicle's actual weight) rather than the difference between 35,000 pounds (the statutory weight) and 95,000 pounds (the vehicle's actual weight). They base their argument on the language in Section 316.545(2)(b), Florida Statutes, which provides that delinquency fees need not be paid if a person who has been assessed a penalty pursuant to that paragraph for failure to have a valid vehicle registration obtains a valid registration certificate within 10 working days after such penalty was assessed. Respondents' argument is without merit.

    
    

11. The delinquency fees authorized in Section 320.07, Florida Statutes, are fees in addition to the penalty computed at 5 cents per pound on that weight by which the commercial vehicle exceeds the weight of 35,000 pounds. In this case, the Department did not collect delinquency fees in addition to the assessed penalty since Respondents did obtain a valid registration certificate within 10 working days after the penalty was assessed. Neither Section 316.545 nor Section 320.07 provides that no penalty shall be paid if a valid registration certificate is obtained within 10 working days after such penalty was assessed.

    
    

12. Respondents also argue that the penalty assessed against them should be modified or cancelled since their failure to have a valid vehicle registration was inadvertent and not intentional. Section 316.545 does not require intent. Pursuant to Section 320.02(1), Florida Statutes, the vehicle owner or person in charge of the vehicle is responsible for the registration of the vehicle and keeping the registration current while operating the vehicle on the highways of the State of Florida. Neither Forestry Resources, Inc., which was in charge of the vehicle, nor Carmichael Truck Leasing Corp., which owned the vehicle, obtained a current registration before the vehicle was driven on the highways in this State. The fact that they were unaware that the vehicle

registration had expired does not relieve them of the responsibility for having a valid vehicle registration. Respondents have shown no special circumstance which prevented them from knowing the expiration date of the vehicle's registration or which prevented them from obtaining a valid registration before operating the vehicle on the highways of this State.

RECOMMENDATION

Based upon the foregoing Stipulated Facts and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the penalty of

$3,000 was correctly assessed and denying Respondents' request for a refund or a reduction.

DONE and ENTERED this 27th day of August, 1991, at Tallahassee, Florida.

COPIES FURNISHED:

LINDA M. RIGOT

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 27th day of August, 1991.

Elyse S. Kennedy, Executive Secretary Florida Department of Transportation Commercial Motor Vehicle Review Board 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Vernon L. Whittier, Jr., Esquire Assistant General Counsel

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

Tallahassee, Florida 32399-0450

William L. Bromagen, Esquire Blackwell & Walker, P.A.

2400 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131

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 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: 91-001708

Orders for Case No: 91-001708