STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. )

) CASE NO. 91-4943

NORMAN WILLIAMS and )

HAYES & HAYES TRUCKING, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 17, 1991, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jay O. Barber, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Norman Williams

Hayes & Hayes Trucking 814 North Missouri Avenue Lakeland, Florida 33805

STATEMENT OF THE ISSUES

The issue in this case is whether the Hayes & Hayes Trucking triple axle dump truck being driven by Norman Williams on June 20, 1990, on U.S. 92 between 56th Street and Orient Road in Tampa, Florida, was being operated with its air axle up, resulting in its being over the maximum weight for its tandem rear axles, as well as for its steering axle, under Section 316.535, Florida Statutes (1989).

PRELIMINARY STATEMENT

Based on the information in the record in this case, a Department of Transportation (DOT) Motor Vehicle Compliance Officer cited Hayes & Hayes Trucking (the company), with a violation for exceeding maximum allowable weight under Section 316.535, Florida Statutes (1989), and assessed a $181.50 fine.

The company paid the fine and charged the $181.50 to Norman Williams, its employee who was operating the truck at the time of the citation. It appears that Williams requested the Commercial Motor Vehicle Review Board (the Review Board) to drop or reduce the fine. It appears that the Review Board considered Williams' request on February 14, 1991, and denied it by letter dated February 19, 1991. On March 7, 1991, Jones filed a request for a Section 120.57(1)

formal administrative proceeding, and the matter was referred to the Division of Administrative Hearings by letter dated August 2, and received August 5, 1991.

1/

When only the DOT responded to the Initial Order in the case, final hearing was set for September 17, 1991, at the Division of Administrative Hearings in Tallahassee, Florida.

On Friday, September 13, 1991, Williams telephoned the Hearing Officer to complain that he would not be able to attend the final hearing, or any hearing in Tallahassee, and to request that the venue of the hearing be changed to the Lakeland area. He claimed that he did not receive the Initial Order until the Thursday (apparently August 29, 1991) before he received the Notice of Hearing on Tuesday (apparently September 3, 1991). He complained that he did not get a full ten days to respond to the Initial Order. (The Initial Order required a response to be filed within ten days from the date of the Initial Order, not from the date of receipt.) He had no explanation for why the Initial Order took from August 8 until August 29 to reach him or why he then waited until September 13, two working days before the final hearing, to bring the matter to the attention of the Hearing Officer. (F.A.C. Rule 22I-6.017 requires a motion for a continuance of a final hearing to be in writing and, unless there are emergency circumstances, filed at least five days before the date noticed for hearing.)

After attempts to contact counsel for the DOT were unsuccessful, Williams was advised on Monday, September 16, that the hearing would go forward as scheduled. When Williams repeated that he would not be able to attend, he was asked if he wanted to participate via conference telephone call, and he said he did.

At the final hearing on September 17, 1991, in Tallahassee, Williams participated by conference telephone call, the DOT agreed to his participation by conference telephone call, and Williams abandoned his request for a continuance and change of venue. Final hearing proceeded with Williams participating via conference telephone, and the others participating in person in Tallahassee.

Williams and the DOT compliance officer testified at the final hearing. The DOT introduced two exhibits in evidence; Williams did not introduce any exhibits. Neither party ordered the preparation of a transcript of the final hearing, and proposed recommended orders were required to be filed by September

27, 1991. Only the DOT filed a proposed recommended order. As reflected in the Findings of Fact, below, the proposed findings of fact contained in the DOT's proposed recommended order are accepted and incorporated to the extent not subordinate or unnecessary. 2/

FINDINGS OF FACT

1. On June 20, 1990, Norman Williams was operating a dump truck owned by Hayes & Hayes Trucking on 56th Street in Tampa, Hillsborough County, Florida. The truck was equipped with a steering axle, tandem rear axles and a middle "mini-axle" that can be lowered to carry heavy loads. When required to carry heavy loads, the "mini-axle" can be raised only during turning but must be lowered upon completion of the turn.

2. When Williams got to U.S. 92, he raised the "mini-axle" and made a right turn onto U.S. 92, headed east. He did not lower the "mini-axle" after the turn.

   
   

3. While headed west on U.S. 92, about a hundred yards east of 56th Street, Rebecca Stalnaker, a DOT Motor Carrier Compliance Officer, observed the dump truck Williams was driving traveling east on U.S. 92 with its air axle up. She made a U-turn to check the load.

   
   

4. After making her U-turn, Stalnaker followed the truck, which was traveling in the left lane of the eastbound traffic on U.S. 92, for approximately a mile. Three or four times, Stalnaker changed to the right lane to verify that the truck's air axle still was up. After following for about a mile, Stalnaker put on her blue light to get the driver of the truck to pull over and stop. For the first time, Williams saw Stalnaker in his side view mirror and, as he began to pull into the right lane, put his truck's air axle down. Williams pulled the truck off the right side of the road.

   
   

5. When Stalnaker confronted Williams and accused him of driving with the air axle up, Williams replied that he thought it was permissible to drive with the air axle up in town when driving in traffic in streets having traffic signalization.

   
   

6. Stalnaker required Williams to put the air axle back up and drive his truck to a weigh station. The scale showed that the front, steering axle of the truck was supporting 19,980 pounds and the rear, tandem axles of the truck were supporting 47,400 pounds.

   
   

7. After weighing the truck, Stalnaker issued a citation and $181.50 fine to Hayes & Hayes Trucking. The company paid the fine and required Williams to reimburse the company.

   
   

8. The company never challenged the fine, and there is no evidence in the record that the company authorized Williams to challenge it on the company's behalf. Williams requested that the Commercial Motor Vehicle Review Board drop the fine. The Review Board and the Department acquiesced in Williams' standing, but the Review Board declined to drop the fine.

   
   

   CONCLUSIONS OF LAW

   
   

9. In this case, the Review Board and the Department have aquiesced in Williams' standing to request that the $181.50 imposed against Hayes & Hayes Trucking in this case be dropped. Cf. Section 120.52(12)(c), Fla. Stat. (1989); Final Order, Dept. of Transp. v. Jones, DOAH Case No. 90-3247, entered February 4, 1991.

   
   

10. It is clear that, in a case to discipline a licensee, the regulating agency has the burden of proof. Cf. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The general law is that the burden of proof is on the party asserting the affirmative of the issue. See Balino v. Dept. of Health, etc., 348 So. 2d

    349 (Fla. 1st DCA 1977). It is concluded that, since Williams has been given standing as a "person aggrieved by the imposition of" the fine in this case, the DOT is the party asserting the affirmative of the issue (i.e., the imposition of the fine) and has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the fine. Cf. Final Order, Dept. of Transp. v. Jones, supra.

11. As reflected in the Findings of Fact, it is concluded that the DOT did prove, by a preponderance of the evidence, that Williams was operating the company truck he was driving on June 20, 1990, with the air axle up for at least approximately a mile along U.S. 92.

    
    

12. Under Section 316.540, Florida Statutes (1989), the maximum allowable total axle weight for the rear, tandem axles of the truck Williams was driving on June 20, 1990, was 40,000; the maximum allowable axle weight for the front, steering axle was 16,500. 3/

    
    

13. Section 316.545(2)(a), Fla. Stat. (1987), provides: "For enforcement purposes, all scaled weights of the gross or axle weight of vehicles and combinations of vehicles shall be deemed to be not closer than 10 percent to the true gross weight." Apparently, under the DOT's policy interpretation and application of this statute, this means that, for purposes of calculating the amount of the penalty referred to in Section 316.540, the legal tolerance must be added to the legal weight before subtracting the legal weight from the scaled weight. Cf. Final Order, Dept. of Transp. v. Keystone Excavators, Inc., DOAH Case No. 90-7815, entered August 1, 1991. 4/ With the statutory legal tolerances added, the maximum allowable total axle weight for the rear, tandem axles of the truck Williams was driving on June 20, 1990, was 44,000, and the maximum allowable axle weight for the front, steering axle was 18,150.

    
    

14. Under Section 316.545(3)(b), Florida Statutes (1989), the fine for each Section 316.540 axle violation is computed at $10 for the first 1,000 pounds and 5 cents for each additional pound overweight. Since the truck Williams was driving weighed 19,980 on the front, steering axle, and 47,400 on the rear, tandem axles, the proper amount of the fine was $181.50.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order upholding the $181.50 fine it assessed against Hayes & Hayes Trucking in this case.

RECOMMENDED this 2nd day of October, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 2nd day of October, 1991.

ENDNOTES

1/ No explanation for the delay between the request for hearing and the referral to the Division of Administrative Hearings appears in the record.

2/ The first proposed finding incorrectly gives the year of the citation as being 1991. This appears to be a typographical error. As found, the citation actually was issued on June 20, 1990.

3/ It is not clear how the DOT determined these maximum weights. However, the testimony and evidence presented at the hearing would support this conclusion.

4/ However, it is not clear why the DOT would apply the statutory legal tolerances to Section 316.540 violations when, under the rationale of the Keystone Final Order, the DOT does not apply them to Section 316.545(2)(b) violations.

COPIES FURNISHED:

Jay O. Barber, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Norman Williams

Hayes & Hayes Trucking 814 North Missouri Avenue Lakeland, Florida 33805

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Elyse S. Kennedy Executive Secretary Commercial Motor Vehicle

Review Board

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF TRANSPORTATION WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF TRANSPORTATION CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 91-004943

Orders for Case No: 91-004943