STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3503

)

BRANDYWINE COMPANIES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on July 29, 1991 in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Charles G. Gardner, Attorney

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

Tallahassee, Florida 32399-0458 FOR RESPONDENT: No appearance

STATEMENT OF THE ISSUE

Whether or not the overweight fine and fee for an International Registration Plan (IRP) Trip Permit in the total amount of $1,700.00 assessed Brandywine Auto Sales, Inc. by the Department of Transportation was correct under the provisions of Sections 316.545 and 320.0715 F.S.

PRELIMINARY STATEMENT

Formal hearing was convened ten minutes later than scheduled and after sounding the docket in the waiting areas of the scheduled location.

Nonetheless, no one appeared on behalf of Respondent Brandywine Companies.

Petitioner presented the oral testimony of David Edward Spencer, Elyse Kennedy, Jack Pelham, and Lt. Billy Hightower and had six exhibits admitted in evidence.

Although the docket was again sounded after the Petitioner had rested, no appearance was made by Respondent. Accordingly, no evidence was presented by Respondent.

No transcript was provided, but all timely-filed proposed findings of fact have been ruled on in the appendix to this recommended order.

FINDINGS OF FACT

1. On March 17, 1990 Officer David Spencer of the Department of Transportation's Weights Enforcement Division stopped a 1986 GMC "lowboy" trailer at the weight station on SR 9 (I-95) in Yulee, Nassau County, Florida.

   
   

2. The vehicle had been proceeding north in the northbound lanes approximately one mile before entering Georgia.

   
   

3. When stopped, the GMC trailer was loaded with a Warner & Swasey grade- all, which is heavy machinery, an earth mover.

   
   

4. When stopped, the vehicle displayed a Maryland "dealer" tag on the window, accompanied by a State of Maryland registration certificate for Brandywine Auto Sales, Inc., as a dealer.

   
   

5. When weighed, the vehicle/load weighed in at 68,400 pounds. The Respondent was allowed 35,000 pounds as a legal weight pursuant to Section 316.545(2)(b) F.S., but the agency assessed five cents per pound of excess weight (68,400 - 35,000 = 33,400 pounds), totalling $1,670.00.

   
   

6. The fine, plus a $30.00 statutory fee for an IRP Trip Permit and Temporary Fuel Use Permit was paid to the Department of Transportation (DOT) via Western Union, and the vehicle was issued an IRP Trip Permit and Temporary Fuel Use Permit so that it could complete its trip.

   
   

7. The fine/citation was protested by the Respondent, Brandywine Companies, which purports to be a parent company of Brandywine Auto Sales, Inc. Brandywine Auto Sales, Inc. is the holder of the Maryland dealer tag. The protest was twice denied by the DOT Commercial Vehicle Review Board before the dispute was referred to the Division of Administrative Hearings.

   
   

8. Jack Pelham is Bureau Chief of the Division of Motor Vehicles of the Florida Department of Highway Safety and Motor Vehicles. In his official capacity, Mr. Pelham is responsible, in part, for oversight of motor vehicle registration in the state of Florida. According to Mr. Pelham's testimony, his agency considers a dealer tag to be sufficient to permit the hauling of automobiles and trucks, but insufficient to authorize hauling heavy equipment such as a grade-all, as was the case here.

   
   

9. Based on his agency's interpretation of the reciprocity provisions of Chapter 320 F.S., Mr. Pelham also testified that the Division of Motor Vehicles would still consider Respondent's Maryland dealer tag used for hauling the grade-all in this case to be sufficient compliance with Florida law so as to

   avoid a fine if there were any competent substantial evidence that Maryland, the state which issued the dealer tag, used its dealer tags to permit the hauling of heavy machinery within its own borders.

   
   

10. There was no affirmative demonstration that Maryland's dealer tags permit such heavy duty hauling, and all hearsay evidence admissible for consideration pursuant to Section 120.58(1) F.S. suggests contrariwise.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

12. The mathematical computations of Respondent's vehicle/load weight and the fine amount as assessed are unrefuted and are permissible under Section 316.545(2)(b) F.S. Thirty dollars is the charge provided by statute for an IRP Permit. See, Section 320.0715 (2)(a) and (b) F.S. Therefore, the only remaining issue for determination is whether or not the Maryland dealer's tag in question was sufficient so that the Florida Department of Transportation should not have required an IRP tag/plate and assessed the overweight fine.

    
    

13. Transporter tags are available in Florida for the transport of unregistered, untagged motor vehicles, incidental to the conduct of business. See, Section 320.133 F.S. Dealer tags may be used in the state of Florida while the vehicles are in inventory and for sale, for instance for demonstration purposes, and while being operated in connection with the dealer's business, for instance for delivery of the unit after sale. See, Sections 320.13 and 320.37

    F.S. Foreign corporations doing business in Florida are not exempt from registration under Section 320.37 F.S., and notwithstanding Section 320.37 F.S., the owner is required to register a motor vehicle and obtain a license for it when the motor vehicle is temporarily used in this state or within ten days of when the owner engages in a trade, profession, or occupation in this state. See, Section 320.38 F.S. The ten-day grace period for those becoming employed in Florida was not raised as a defense in this case, and that exception is clearly intended for use by those who have obtained some regular employment in Florida, not as a loophole to permit overweight out-of-state corporate haulers to operate over Florida roads at will while doing business here. See, Section 320.37(2) F.S.

    
    

14. Sections 320.37 and 320.38 F.S. provide in pertinent part as follows:

    
    

    1. Registration not to apply to nonresidents.--

       1. The provisions of this chapter relative to the requirement for registration of motor vehicles and display of license number plates do not apply to a motor vehicle owned by a nonresident of this state if the owner thereof has complied with the provisions of the motor vehicle registration or licensing law of the foreign country, state, territory, or federal district of his residence and conspicuously

          displays his registration number as required thereby.

       2. The exemption granted by this section does not apply to:

          1. A foreign corporation doing business in this state; (Emphasis supplied)

       * * *

    2. When nonresident exemption not allowed. The provisions of s. 320.37 authorizing the operation of motor vehicles over the roads of this state by nonresidents of this state when such vehicles are duly registered or licensed under the laws of some other state or foreign country do not apply to any nonresident who accepts employment or engages in any trade, profession, or occupation in this state, except a nonresident migrant farm worker as defined in

    s. 316.003(61). In every case in which a nonresident, except a nonresident migrant farm worker as defined in s. 316.003(61),

    accepts employment or engages in any trade, profession, or occupation in this state or enters his children to be educated in the public schools of this state, such nonresident shall, within 10 days after the commencement of such employment or education, register his motor vehicles in this state if such motor vehicles are proposed to be operated on the roads of this state. . . .

    
    

15. Reading the several statutory provisions together, it appears that when a corporate motor vehicle has its permanent business situs in another state, but is temporarily used in Florida, it must be registered and bear a Florida tag/plate, although a Florida title certificate is not required.

    
    

16. The Department of Highway Safety and Motor Vehicles administers Chapter 320 with regard to motor vehicle registration. The Department of Transportation administers the statutes with regard to overweight vehicles.

    
    

17. The construction of a nonpenal regulatory statute by the officials charged with administering it should not be disregarded or overturned except for the most cogent reasons and unless clearly erroneous. See, Shell Harbor Group, Inc. v. Dept. of Business Regulation, 487 So.2d 1141 (Fla. 1st DCA 1986); ABC Liquors, Inc. v. Dept. of Business Regulation, Div. of Alcoholic Beverages and Tobacco, 397 So.2d 696 (Fla. 1st DCA 1981); King v. Seamon, 59 So.2d 859 (Fla. 1952); Gay v. Canada Dry Bottling Co. of Florida, Inc., 59 So.2d 788 (Fla. 1952).

    
    

18. Upon the foregoing authority and upon the testimony of Mr. Pelham, it is determined that despite Florida's reciprocity agreement with Maryland, Respondent's display of a dealer tag was not sufficient to exempt Respondent from Florida tag requirements or from the overweight fine imposed, since corporate Respondent's truck was in the business of delivering or retrieving a grade-all, which is heavy machinery.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commercial Vehicle Review Board of the Department of Transportation enter a final order ratifying the correctness of the imposition of the $1,700.00 fine/fee assessed Brandywine Auto Sales, Inc.

DONE and ENTERED this 20th day of August, 1991, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 20th day of August, 1991.

APPENDIX

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF):

Petitioner's PFOF:

5 is rejected as unintelligible.

1-4 and 6-7 are accepted as modified. Respondent's PFOF:

None filed

COPIES FURNISHED:

Rush M. Cox, Jr., Controller Brandywine Companies

Routes 301 and 381, Box 68

Brandywine, MD 20613

Charles G. Gardner, Attorney Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, FL 32399-0458

Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams General Counsel

562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458

Case No. 91-3505

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3505

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: 91-003503

Orders for Case No: 91-003503