STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4947

)

SOUTHERN DOOR COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above

APPEARANCES

FOR PETITIONER: Vernon L. Whittier, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

FOR RESPONDENT: John Ball, pro se

Southern Door Company 951 S.W. 12th Avenue

Pompano Beach, Florida 33069 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether a fine assessed against Respondent in the amount of $380 for operating a vehicle in excess of legal weight limitations should be upheld.

PRELIMINARY STATEMENT

Petitioner assessed Respondent with a fine of $380 in accordance with the Load Report dated May 15, 1991. By letter dated June 18, 1991, Petitioner advised Respondent that Respondent's request for refund was denied. Respondent requested a formal hearing, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on August 2, 1991. The proceeding was assigned to Hearing Officer Diane Cleavinger on August 8, 1991, and transferred to the undersigned on September 17, 1991. A formal hearing was scheduled for November 15, 1991, pursuant to a Notice of Hearing issued on September 23, 1991, and rescheduled for December 12, 1991, pursuant to Petitioner's Motion For Continuance.

At the formal hearing, Petitioner presented the testimony of two witnesses, 1/ and submitted the Load Report and Field Receipt as a composite exhibit.

Petitioner's Exhibit 1 was admitted in evidence without objection. Respondent presented the testimony of Mr. John Ball, Safety Director for Respondent, and submitted a copy of a scale ticket for admission in evidence. Respondent's Exhibit 1 was not admitted in evidence pursuant to the objection of Petitioner.

A transcript of the formal hearing was filed with the undersigned on January 2, 1991. Proposed findings of fact and conclusions of law were not filed by either party.

FINDINGS OF FACT

1. Respondent operated a truck on May 14, 1991, which had a legal weight of 80,000 pounds. The truck was weighed on May 14, 1991, at the White Springs Scales on I-75. At the time it was weighed, the truck weight registered 87,600 pounds. The actual weight of the truck exceeded the legal weight by 7,600 pounds.

   
   

2. The operator of the truck requested a second weighing. A second weighing was performed with the same result as the first weighing.

   
   

3. Petitioner imposed a penalty of $380 which was paid by Respondent. The amount of the penalty was accurately calculated in accordance with applicable law.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

5. Petitioner has the burden of proof in this proceeding. Petitioner must show by a preponderance of the evidence that it is entitled to the relief requested in this proceeding. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

6. Petitioner satisfied its burden of proof in this proceeding.

Petitioner presented competent and substantial evidence that Respondent operated a truck in excess of the legal weight and that the fine imposed was proper.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order upholding the fine imposed

against Respondent.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1992.

DANIEL MANRY

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 23rd day of January, 1992.

ENDNOTES

1/ Petitioner presented the testimony of Ms. Lillian Bennet, Weight Inspector for Petitioner; and Mr. Clifford Gwine, Certified Law Enforcement Officer assigned to Motor Carrier Compliance.

COPIES FURNISHED:

Ben G. Watts, Secretary

Atten: Eleanor F. Turner, M.S. 58 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

Vernon L. Whittier, Esquire Assistant General Counsel Department of Transportation 605 Suwannee St., MS Tallahassee, Florida 32399-0458

John Ball, pro se Southern Door Company 951 S.W. 12th Avenue

Pompano Beach, Florida 33069

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: 91-004947

Orders for Case No: 91-004947