STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4945

)

GLENN E. PORTER, )

)

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 October 29, 1991 in Sarasota, Florida.

APPEARANCES

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

Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458

For Respondent: Glenn E. Porter, Pro Se

5213 Fourth Street

Bradenton, FL 34203 STATEMENT OF THE ISSUE

Whether the penalty in the amount of $2,222.00 assessed Respondent by the Petitioner for operating a commercial vehicle on the highways of the state of Florida in excess of the vehicle's gross vehicle weight as established by law for operating a commercial vehicle with an expired registration was correct under the provisions of Section 316.545, Florida Statutes.

PRELIMINARY STATEMENT

On August 7, 1990, a commercial vehicle owned by Respondent but operated by Trinity Trucking, while traveling over State Road 5 (S.R. 5) a/k/a U.S. 1, in Monroe County, Florida was stopped and weighed by Petitioner, Department of Transportation (Department) and cited for a no tag tax class violation. The Respondent was assessed a penalty in the amount of $2,222.00 by the Department for the vehicle being overweight. The matter was reviewed by the Commercial Motor Vehicle Review Board (Board) at its meeting of January 10, 1991, and the Board determined that a refund of the penalty would not be appropriate. By letter of January 16, 1991, the Board advised the Respondent of its determination and of Respondent's right to a formal administrative hearing. By letter the Respondent requested a formal hearing and this proceeding ensued.

At the hearing, the Department presented the testimony of Glenda Fellows and Laurie M. Dupuy. Department's exhibits 1 and 2 were received into evidence. Respondent testified on his own behalf but presented no other witness or documentary evidence. Lt. William R. Leddon was called as a witness by the Hearing Officer.

A transcript of this proceeding was filed with the Division of Administrative Hearing on November 12, 1991. The Petitioner timely submitted its proposed findings of fact and conclusions of law. The Respondent verbally waived the submission of his proposed findings of fact and conclusions of law. A ruling on each propose finding 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. At all times material to this proceeding, the Respondent owned a commercial vehicle identified as a 1983 KW, VIN:IXKKD28X3DJ298929 (vehicle) which was operated by Trinity Trucking of Tampa, Florida.

   
   

2. On August 7, 1990 the Respondent's vehicle while traveling on S.R. 5 in Monroe County, Florida was stopped and weighed by the Department. The total weight of the vehicle was 79,440 pounds consisting of 10,380 pounds on the steering axle, 35,900 pounds on drive tandem and 33,160 pounds on rear tandem.

   
   

3. A Load Report and Field Receipt was completed and indicated the legal weight to be 35,000 pounds. This is the legal weight established for a commercial vehicle by Section 316.545(2)(b), Florida Statutes when that vehicle has an expired registration.

   
   

4. The Respondent's Florida International Registration Plan (IRP) Temporary Operational Permit No. 061084 had expired on August 3, 1990, and Respondent had not obtained another Florida IRP Temporary Operational Permit or a current registration for the vehicle on August 7, 1990 when the vehicle was stopped and weighed.

   
   

5. Using the "no tag" tax class weight of 79,440 pounds and subtracting the legal weight of 35,000 pounds as established by statute the vehicle was 44,440 pounds overweight. The Department assessed the Respondent a penalty of

   $0.05 per pound for each pound the vehicle was overweight which resulted in a total penalty assessed the Respondent of $2,222.00. After the Respondent purchased a valid tag for the vehicle and paid the penalty the vehicle was released.

   
   

6. Respondent applied for registration in the Florida IRP in accordance with Section 320.0715, Florida Statutes, and was issued a 60-day Temporary Operational Permit in accordance with Section 320.0715(3), Florida Statutes, on June 4, 1990 with an expiration date of August 3, 1990.

   
   

7. Sometime around June 28, 1990 Respondent was advised by the Department of Highway Safety and Motor Vehicles (DHSMV) that additional information was needed in order to further process his application for registration in the Florida IRP.

8. Sometime around the week of July 9, 1990 Respondent mailed the requested information to IRP, Motor Carrier Service. DHSMV, however, the letter was misdirected to the Internal Revenue Service (IRS), possibly the U.S. Postal Service confused IRP with IRS, but, in any event, the information was returned to the Respondent in October 1990 by IRS. By this time, the Respondent had purchased a valid Florida tag and decided not to pursue registration of this vehicle in the Florida IRP.

   
   

9. Respondent admitted that he was aware that the temporary operational permit for the vehicle expired on August 3, 1990 even though he was not personally operating the vehicle. Respondent also admitted that he made no inquiry to the DHSMV as to the status of his application for registration and did not request any extension of his temporary operational permit before the permit expired or before the vehicle was found to be overweight on August 7, 1990. It was only after the vehicle was found to be overweight due to the expired permit that Respondent checked with DHSMV and was advised that the requested information had not been received.

   
   

10. There was no evidence that it was the policy of the Department to disregard the provision of Section 316.545(2)(b), Florida Statutes, establishing a legal weight of 35,000 pounds for a vehicle with an expired registration when the DHSMV had an application on file for registration in the Florida IRP which was being processed by DHSMV.

    
    

11. On August 7, 1990 the Respondent's vehicle was 44,440 pounds overweight when it was stopped and weighed in Monroe County, Florida on S.R. 5, and the calculation of the penalty ($0.05 x 44,440 pounds = $2,222.00) is correct.

    
    

    CONCLUSIONS OF LAW

    
    

12. 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.

    
    

13. 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.

    
    

14. 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 Section 316.003(66), to determine if its gross weight is in compliance with the declared gross vehicle weight. If its gross

       weight exceeds the declared weight, the penalty shall be 5 cents per pound on the difference between such weights. In those cases when the commercial vehicle, as defined in Section 316.003(66), 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

       . . . (e.s.).

       
       

15. In the instant case, the gross weight or tax class weight of Respondent's vehicle on November 13, 1990 when weighed by the Department was 79,440 pounds which was 44,440 pounds in excess of the legal weight established by Section 316.545(2)(b), Florida Statutes. 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 $2,222.00. There is no provision of law or policy of the Department which would allow mitigation of this penalty due to the fact that the Respondent had filed an application which was being processed by DHSMV for registration with the Florida IRP. However, the Respondent may find some comfort in that having obtained a valid registration within ten working days of the assessment of the penalty he was exempted from the penalty assessed under Section 320.07, Florida Statutes, by both Section 316.545(2)(b) and 320.07(4)(b), Florida Statutes, for operating the vehicle with an expired registration.

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 his request for refund of the penalty.

DONE and ENTERED this 21st 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 21st day of October, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-4945

The following constitutes 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. Adopted in substance as modified in Findings of Fact 2, 3, 4 and 5.

2. Adopted in substance as modified in Findings of Fact 6, 7 and 8.

3. Adopted in substance as modified in Finding of Fact 10.

Rulings on Proposed Findings of Fact Submitted by the Respondent

Respondent waived the filing of proposed findings of fact and conclusions of law.

Copies furnished to:

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458

Glenn E. Porter 5213 Fourth Street

Bradenton, FL 34203

Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, M.S. 58 Haydon Burns Building

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: 91-004945

Orders for Case No: 91-004945