STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4946

)

THURMOND INVESTMENT CO. and )

CERTIFIED MOVERS, INC., )

)

Respondents. )

)

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: No Appearance.

STATEMENT OF THE ISSUE

The issue in this case is whether, and to what extent, the Petitioner, the Department of Transportation (DOT), should penalize the Thurmond Investment Co. for the operation of a commercial motor vehicle it owns in excess of the maximum gross vehicle weight authorized by the declared weight of the vehicle, in violation of Section 316.545, Fla. Stat. (1989).

PRELIMINARY STATEMENT

In this case, a Department of Transportation (DOT) Motor Vehicle Compliance Officer cited Thurmond Investment Co. with the operation of a commercial motor vehicle it owns in excess of the maximum gross vehicle weight authorized by the declared weight of the vehicle, in violation of Section 316.545, Fla. Stat. (1989). The DOT assessed a $2,395.05 fine against Thurmond. Certified Movers, Inc., which was operating the vehicle on the date in question, paid the fine on Thurmond's behalf under protest and, on October 29, 1990, requested that the Commercial Motor Vehicle Review Board (the Review Board) drop or reduce the fine. The Review Board considered Certified Movers' request on February 14, 1991, and denied it by letter dated February 19, 1991.

By letter dated March 4 and filed on March 7, 1991, Certified Movers requested formal administrative proceedings. By letter dated August 2, and

filed on August 5, 1991, DOT referred the matter to the Division of Administrative Hearings for formal administrative proceedings. 1/

When only the DOT responded to the Initial Order in this case, it was set for final hearing at the Division of Administrative Hearings in Tallahassee, Florida, on September 17, 1991. Neither Thurmond, Certified Movers nor anyone on behalf of either of them appeared at the final hearing. The DOT called three witnesses and had four exhibits admitted in evidence. 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 generally are accepted and incorporated to the extent not subordinate or unnecessary. 2/

FINDINGS OF FACT

1. On October 18, 1990, Certified Movers, Inc., was operating a commercial motor vehicle owned by Thurmond Investment Co. on State Road 419 in White Springs, Seminole County, Florida.

   
   

2. On January 5, 1990, the vehicle had been registered with a declared maximum gross vehicle weight of 14,750 pounds, and state taxes were paid for the classification of commercial motor vehicles up to 14,999 pounds. Under the declaration and payment of the appropriate tax, Thurmond was authorized to operate the vehicle at up to 14,999 pounds.

   
   

3. On October 18, 1990, the vehicle still was registered with a declared maximum gross vehicle weight of 14,750 pounds, and Thurmond was authorized to operate the vehicle at up to 14,999 pounds. However, on October 18, 1990, the vehicle was being operated at a gross vehicle weight of 62,900 pounds. 3/

   
   

4. On October 25, 1990, Thurmond changed the weight declaration for the vehicle to 80,000 pounds (the weight declared when the vehicle was registered for the years prior to January 5, 1990.) There was no evidence why the declaration was reduced for the period between January 5 and October 24, 1990.

   
   

   CONCLUSIONS OF LAW

   
   

5. In this case, the Commercial Motor Vehicle Review Board (Review Board) and the DOT have aquiesced in the standing of both Thurmond Investment Co. and Certified Movers, Inc., to request that the $2395.05 fine imposed against Thurmond in this case be dropped or reduced. 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.

   
   

6. 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 Thurmond and Certified Movers have 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.

7. Section 316.545(2)(b), Fla. Stat. (1989), provides in pertinent part:

   
   

   The officer shall inspect the license plate or registration certificate of the commercial

   vehicle . . . 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.

   
   

8. As reflected in the Findings of Fact, it is concluded that the DOT did prove, by a preponderance of the evidence, that the Thurmond vehicle being operated by Certified Movers on October 18, 1990, was 62,900 pounds, while the declared weight was 14,750 pounds, authorizing its operation at up to a maximum of 14,999. 4/

   
   

9. Under Section 316.545(2)(b), the question is whether the gross weight "is in compliance with the declared gross vehicle weight." In this case, a weight of up to a maximum of 14,999 would be "in compliance with the declared gross vehicle weight." The "difference," on which the penalty is assessed, is the difference between 14,999 and the gross weight of 62,900, or a difference of 47,901 pounds. The statutory penalty computes to $2,395.05.

   
   

10. Under the language of Section 316.545(2)(a) alone, the imposition of a penalty, in the amount specified by the statute, would appear to be mandatory. But Section 316.545(4)(c) and (8), Florida Statutes (1989), gave Thurmond and Certified Movers the right to "apply to the [Commercial Motor Vehicle Review Board] for a modification, cancellation, or revocation of the penalty, and the review board is authorized to modify, cancel, revoke, or sustain such penalty." Reading all of the provisions of Section 316.545 together, it must be concluded that the statutory penalty is not mandatory but rather is subject to "modification, cancellation, or revocation" by the Review Board. In the Final Order, Dept. of Transp. v. Keystone Excavators, Inc., DOAH Case No. 90-7815, entered August 1, 1991, the DOT held in pertinent part: "The Commercial Motor Vehicle Review Board (Board) and the Department have the authority to modify, cancel or revoke a penalty upon a finding of error, mistake or subsequent production of documentation but must otherwise levy the penalty as prescribed by the Statute without mitigation for extenuation circumstances." Thurmond and Certified Movers made no appearance at the final hearing, and no basis appears in the evidentiary record for modifying, cancelling or revoking the statutory penalty.

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 $2,395.05 fine it assessed against Thurmond 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/ However, the last sentence of the first proposed finding is subordinate to facts contrary to those found. See footnote 3, below.

3/ When it was suggested that a ten percent legal tolerance might have to be factored in to calculate the proper penalty under Section 316.545(2)(b), Fla. Stat. (1989), the enforcement officer who issued the citation testified that he believed the portable scales he used were somehow calibrated to deduct ten percent from the scaled gross weight of the vehicle. This testimony was not persuasive. However, in accordance with the rationale given in the case resullting in the Final Order, Dept. of Transp. v. Keystone Excavators, Inc., DOAH Case No. 90-7815, entered August 1, 1991, it is concluded that the tolerance requirement only applies to the assessment of penalties under subparagraph (2)(a) of Section 316.545. See footnote 4, below.

4/ Under the rationale in the Final Order, Dept. of Transp. v. Keystone Excavators, Inc., DOAH Case No. 90-7815, entered August 1, 1991, the requirement of a ten percent tolerance factor would apply only to subparagraph (2)(a) of Section 316.545, Fla. Stat. (1989).

COPIES FURNISHED:

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

Tallahassee, Florida 32399-0458

Sanford H. Butler Certified Movers, Inc.

1225 Bennett Drive, Suite 201

Longwood, Florida 32750

Thomas Johnson, President Certified Movers, Inc.

1225 Bennett Drive, Suite 200

Longwood, Florida 32750

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: 91-004946

Orders for Case No: 91-004946