STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3727

)

SANWA GROWERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on August 30, 1991 in Tampa, Florida.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transporta 605 Suwanee Street, MS-58

Tallahassee, Florida 32399-0458

For Respondent: Wendy Wheelock

Qualified Representative Sanwa Growers, Inc.

5107 State Road 674 East

Wimauma, Florida 33570 STATEMENT OF THE ISSUE

Whether the penalty in the amount of $205.05 assessed Respondent by the Petitioner for operating a commercial vehicle on the highways of the state of Florida in excess of the vehicle's declared and registered gross vehicle weight was correct under the provisions of Section 316.545, Florida Statutes.

PRELIMINARY STATEMENT

On November 13, 1990, a commercial vehicle (truck) owned and operated by Petitioner, while traveling on Interstate Highway 4, (I-4) in Hillsborough County, Florida was weighed by Petitioner, Department of Transportation (Department) and cited for a tax class violation (overweight). The Respondent was assessed a penalty in the amount of $205.05 by the Petitioner for the truck being overweight. The matter was reviewed by the Commercial Motor Vehicle Review Board (Board) at its meeting of February 14, 1991, and the Board determined that a refund of the penalty would not be appropriate. By letter dated February 19, 1991, the Board advised the Respondent of its determination and of Respondent's right to a formal administrative hearing. By letter of

March 1, 1991 the Respondent requested a formal hearing and this proceeding ensued.

At the hearing, the Petitioner presented the testimony of Alice McCarty and

J.D. Morris. Petitioner's exhibits 1 through 5 were received into evidence. Wendy Wheelock testified on behalf of the Respondent. Respondent's exhibits 1 and 2 were received into evidence.

A transcript of this proceeding was filed with the Division of Administrative Hearings on September 13, 1991. At the request of the Petitioner, concurred in by the Respondent, the parties were granted additional time to submit their proposed recommended orders which waived the required time frame for submission of the Recommended Order under Rule 28-5.402, Florida Administrative Code, pursuant to Rule 22I-6.031(2), Florida Administrative Code. The Petitioner timely submitted its proposed recommended order under the extended time frame. The Respondent did not submit a proposed recommended order. A ruling on each of the proposed findings of fact submitted by the Petitioner has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Respondent, Sanwa Growers, Inc., owns and operates over the highways of the state of Florida a commercial vehicle identified as a 1987 Ford truck, VIN 9BFPH70P3HDM03333, Florida license number H1056W (vehicle).

   
   

2. On November 13, 1990 the Respondent's vehicle while traveling on highway I-4 in Hillsborough County, Florida was stopped and weighed by the Department. The total weight of the vehicle was 24,100 pounds consisting of 10,540 pounds on the steering axle and 13,560 pounds on the rear axle.

   
   

3. A Load Report and Field Receipt was completed which indicated the legal weight (declared gross vehicle weight) of the vehicle to be 19,999 with a tax class weight (gross vehicle weight) of 24,100 pounds which resulted in the vehicle being 4,101 pounds overweight. The Respondent was assessed a penalty of

   $0.05 per pound for each pound the truck was overweight which resulted in a total penalty assessed the Respondent of $205.05. The Respondent paid the penalty as assessed and was issued a Field Receipt.

   
   

4. The gross vehicle weight (GVW) of the vehicle as declared by the Respondent in accordance with Section 320.01(12), Florida Administrative Code, on vehicle's registration certificate issued on September 19, 1990 was 19,999 pounds which was the legal weight indicated on the Load Report issued on November 13, 1991. On November 13, 1990 the GVW (legal weight) of the vehicle as declared by the Respondent was 19,999 pounds.

   
   

5. The GVW of the vehicle as declared by the Respondent on the initial registration dated May 11, 1988 was 29,500 pounds. However, on the subsequent registration of the vehicle dated January 4, 1989, the declared GVW by the Respondent was 16,090 pounds which was the same as the net weight of the vehicle shown on the registration.

   
   

6. Although the registration issued on January 4, 1989 expired on December 31, 1989, there was no evidence of a registration being issued upon expiration. The next registration that was issued subsequent to January 4, 1989 that is in

   evidence was issued on September 19, 1990 apparently for the purpose of increasing the GVW from 16,090 pounds to 19,994 pounds. This was the registration in effect at the time the vehicle was weighed on November 13, 1990.

   
   

7. On November 15, 1990, two days after the weighing, the registration was corrected by increasing the GVW from 19,999 pounds to 29,500 pounds.

   
   

8. There was insufficient evidence to show that the GVW set out in each of the registrations in evidence was not the GVW as declared by the Respondent at the time of issuing the registration or that the issuing agency incorrectly listed the GVW as declared by the Respondent on any of the registrations in evidence.

   
   

9. On November 13, 1990 the Respondent's vehicle was 4,101 pounds overweight when stopped and weighed in Hillsborough County, Florida on I-4 and the calculation of the penalty ($0.05 x 4,101 pounds - $205.05) is correct.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

11. Pursuant to Section 316.640(1)(b), Florida Statutes, the Department is authorized to enforce on all streets and highways of this state all laws applicable within its authority.

    
    

12. Section 316.545(1) and (2)(b), Florida Statutes provides in part:

    
    

    1. Any weight and safety officer of the Department of Transportation having reason to believe that the weight of a vehicle and load is unlawful is authorized to require the driver to stop and submit to a weighing of the same

       by means of either portable or fixed scales and may require that such vehicle be driven

       to the nearest weigh station or public scales, provided such a facility is within 5 highway miles. . . .

       (2)(b) The officer shall inspect the license plate or registration certificate of the commercial vehicle, as defined in 2s. 316.003(66), to determine if its gross weight is in compliance with the declared gross vehicle weight, the penalty shall be 5 cents per pound on the difference between such weights. (e.s.)

       
       

13. Section 316.003(66)(a), Florida Statutes, defines a commercial motor vehicle as follows:

    
    

    (66) COMMERCIAL MOTOR VEHICLE - Any

    self-propelled or towed vehicle used on the public highways in commerce to transport passengers or carge, if such vehicle:

    1. Has a gross vehicle weight rating of 10,000 pounds or more.

       The vehicle in question comes within that definition of a commercial motor vehicle.

       
       

14. Section 320.01(12)(b), Florida Statutes, provides in part:

    
    

    (12) "Gross vehicle weight" means:

    * * *

    1. For heavy trucks with a net weight of 8,000 pounds or more, the gross weight of the heavy truck, including the gross weight of any trailer coupled thereto. The gross vehicle weight is calculated by adding to the gross weight of the heavy truck the gross weight of the trailer, which is the maximum gross weight as declared by the owner or person applying for registration. (e.s.)

    
    

15. In the instant case, the gross weight or tax class weight of Respondent's commercial vehicle on November 13, 1990 when weighed by the Department was 24,100 pounds which was 4,101 pounds in excess of the gross vehicle weight declared by the Respondent. Therefore, the Respondent is subject to a penalty of $0.05 per pound for each pound the vehicle is overweight or a total penalty of $205.05

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED:

That the Department enter a Final Order finding the Respondent subject to the penalty as assessed and denying its request for refund of the penalty.

DONE and ENTERED this 9th day of October, 1991, in Tallahassee, Florida.

WILLIAM R. CAVE

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 9th day of October, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-3727

The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case.

Rulings on Proposed Finding of Fact Submitted by the Petitioner

1. Covered in the Preliminary Statement but adopted in substance as modified in Findings of Fact 1 through 3.

   
   

2. Adopted in substance as modified in Finding of Fact 1.

   
   

3. Adopted in substance as modified in Finding of Fact 8.

   
   

4. Adopted in substance as modified in Findings of Fact 2 and 4.

   
   

5. - 6. Adopted in Finding of Fact 9.

Rulings on Proposed Findings of Fact Submitted by the Respondent

Respondent did not submit or file any proposed findings of fact.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458

Wendy Wheelock

Qualified Representative Sanwa Growers, Inc.

5107 State Road 674 East

Wimauma, FL 33570

Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building 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 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: 91-003727

Orders for Case No: 91-003727