STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4944

)

)

PARKER CONSTRUCTION d/b/a )

ROBERTS COMPONENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on December 16, 1991.

APPEARANCES

The parties are represented as follows:

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

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

Tallahassee, Florida 32399-0458

For Respondent: Robert Parker

Roberts Components Post Office Box 2523

LaGrange, Georgia 30241 STATEMENT OF THE ISSUES

Whether Respondent is entitled to a refund of any of the penalty of

$2,109.00 levied against it for violation of Section 316.545, Florida Statutes, and whether the penalty was correctly assessed.

PRELIMINARY STATEMENT

This case arose from a penalty of $2,109.00 levied against Respondent, Parker Construction d/b/a Roberts Components by the Department for violation of Section 316.545, Florida Statutes, for operating a commercial vehicle on an interstate highway carrying weight in excess of its declared and registered gross vehicle weight.

At the hearing, Petitioner called one witness and offered two exhibits into evidence. Respondent testified in his own behalf but did not offer any exhibits into evidence.

Respondent filed a letter in lieu of a formal Proposed Recommended Order on January 6, 1992. Respondent's letter has been considered and utilized in the preparation of this Recommended Order. However, the letter contained mostly legal argument and did not contain separate proposed findings of fact which could be ruled upon. Petitioner did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. Respondent, Parker Construction d/b/a Robert's Components, was operating a commercial vehicle, traveling north on Interstate Highway 75, on March 27, 1991. The truck stopped at the Department's weight scales located in the area of White Springs, Florida.

   
   

2. The Department's Inspector checked the vehicle registration handed to him by the driver. The tag registration was for a valid Georgia tag in the PF category. The PF category allows for a maximum gross vehicle weight of 30,000 pounds. The total weight of Respondent's truck on March 27, 1991, was 72,180 pounds. The total weight exceeded its registered weight by 42,180 pounds.

   
   

3. Respondent was assessed a statutory penalty of five cents a pound for all weight over the commercial vehicle's registered gross vehicle weight of 30,000 pounds. At five cents a pound, the penalty assessed was $2,109.00.

   
   

4. Robert Parker, president and owner of Parker Construction verified that the truck was registered in the PF category. Respondent was in the process of obtaining an IRP tag which would have allowed him to operate the truck at the weight it was carrying. Mr. Parker had no intent to purposely operate an overloaded truck and this was the first violation he had ever incurred since buying the truck. When Mr. Parker contacted a weight inspector with DOT, he was advised that if he wrote a letter to the Review Board advising them of the above facts, the fine would probably be reduced. Mr. Parker was also told that the decision rested with the Review Board. Mr. Parker followed the officer's advise. However, his fine was not reduced.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Pursuant to Section 316.545, Florida Statutes, the Department of Transportation has authority to enforce "... the provisions of weight, load, safety, commercial motor vehicle registration and fuel tax compliance laws "

   and levy fines for violation of those laws.

   
   

7. Section 316.545, Florida Statues provides in part:

   
   

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

8. Section 320.01, Florida Statutes provides in part:

   
   

   (12)(b) For heavy trucks with a net weight of 8,000 pounds or more, the gross vehicle weight of the heavy truck, including the gross vehicle 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. (emphasis supplied)

   
   

9. Mr. Parker admitted that his vehicle was overweight on March 27, 1991. Although the overweight condition of the truck was inadvertent and was Respondent's first violation, the responsibility for the maximum gross weight of the vehicle (including trailer) is placed by statute on the owner of the vehicle in question. Section 316.01(12)(b) Florida Statutes. There are no provisions in Chapter 316, Florida Statutes which allow for reduction of a penalty once it has been assessed and is mathematically correct. Moreover, the evidence was insufficient to show any Board policy or rule which would allow such a reduction. Therefore, Respondent is not entitled to a reduction or refund of the assessed penalty.

   
   

10. Additionally, in this case, at the time he vehicle was cited for a violation of Section 316.545, Florida Statutes, the amount of tax paid to operate Petitioner's vehicle on the highways of this State was for a maximum gross vehicle weight of 30,000 pounds, 42,180 pounds less than the actual gross vehicle weight of the truck. Therefore, the penalty of $2,109.00 assessed Respondent by the Department of Transportation for operating a commercial vehicle carrying a load in excess of its registered gross vehicle weight on the highways of this state was correct under the provisions of Section 316.545, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended:

RECOMMENDED that a Final Order be entered finding that the penalty of

$2,109.00 was correctly assessed against Respondent, pursuant to Section 316.545, Florida Statutes, and that Respondent's request for a refund be denied.

DONE and ORDERED this 3rd day of March, 1992, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 3rd day of March, 1992.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Robert Parker Robert's Components

P. O. Box 2523

La Grange, Georgia 30241

Ben G. Watts, Secretary

ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel

562 Haydon Burns Building Tallahassee, Florida 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: 91-004944

Orders for Case No: 91-004944