STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

)

Petitioner, )

)

vs. ) CASE NO. 91-5769

)

UNRUH FAB, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane Cleavinger, on March 4, 1992, in Pensacola, Florida.

APPEARANCES

FOR PETITIONER: Vernon L. Whittier, Jr.

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

Pensacola, Florida 32399-0458 FOR RESPONDENT: No appearance.

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent correctly assessed a fuel use tax or civil penalty against Petitioner for violations of Sections 207.004, and 316.545, Florida Statutes, and Chapter 320, Florida Statutes, for operating a commercial vehicle on a highway in the State of Florida without vehicle registration and fuel tax registration to operate in the state.

PRELIMINARY STATEMENT

This cause arose from total penalties of $521.00 levied against Respondent, Unrah Fab, Inc., by the Department of Transportation for violations of Sections 207.004, and 316.545, Florida Statutes, and Chapter 320, Florida Statutes, for operating a commercial vehicle without vehicle registration and fuel tax registration to operate in the state. Respondent requested that the assessment be refunded. After review, the Department denied Respondent a refund of the assessment made against it. After notification of the Department's decision, the Respondent requested a formal administrative hearing. The Respondent's request was forwarded to the Division of Administrative Hearings.

A Notice of Assignment and Order was issued on September 9, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United

States mail to the Respondent at the address listed in its request for a hearing. Neither party responded to the Notice.

On November 22, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in its request for a hearing.

Neither Respondent nor its representative appeared at the place set for the formal hearing on the date and time specified in the Notice of Hearing. The Petitioner was present at the hearing along with its attorney. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it or its representative would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced.

At the hearing, the Department called two witnesses and offered two exhibit into evidence.

The Department filed a Proposed Recommended Order on March 18, 1992.

Petitioner did not file a Proposed Recommended Order. The Department's Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such findings were not shown by the evidence, or were cummulative, irrelevant, immaterial or subordinate. Specific rulings on the Department's Proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On June 1, 1991, a commercial vehicle, operated by Unruh Fab, Inc., was stopped on I-10 in Escambia County, Florida at a Department of Transportation weight station. The weight station is the last exit in Florida for westbound vehicles and is the first exit in Florida for eastbound vehicles.

   
   

2. The vehicle was not displaying a fuel use tax device, as required by Section 207.004, Florida Statutes, for its interstate operations and was not registered to operate in the State of Florida as required by Chapter 320, Florida Statutes. The driver did not present any fuel use tax registration documentation or International Registration Plan (IRP) registration as an interstate apportioned vehicle.1/

   
   

3. The Department of Transportation Inspector issued a temporary fuel use permit and an I.R.P. trip permit to Respondent to allow the vehicle to proceed on its way. The total cost of the temporary permits was $75.00. The owner of the vehicle was assessed a $50.00 civil penalty for violation of Chapter 207, Florida Statutes. See, Section 316.545(4), Florida Statutes.

   
   

4. Additionally, while the truck was at the weight station, the Department of Transportation Inspector weighed the vehicle. The truck weighed 42,920 pounds. Under Section 316.545, Florida Statutes, Petitioner's vehicle's weight could not exceed 35,000 pounds. Petitioner's vehicle exceeded the 35,000 pound legal weight by 7,920 pounds. A penalty of 5 cents a pound was assessed for each pound over the legal weight resulting in a penalty of $396.00.

   CONCLUSIONS OF LAW

   
   

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

   
   

6. 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 the relevant statutes. Section 316.545, Florida Statutes.

   
   

7. Section 316.545, Florida Statutes, provides in part:

   
   

   (4)(a) No commercial vehicle, as defined in Section 316.003(66), shall be operated over the highways of this state unless it has been properly registered under the provisions of Section 207.004. Whenever any law enforcement officer identified in Section 207.023(1), upon inspecting the vehicle or combination of vehicles, determines that the vehicle is in violation of Section 207.004, a penalty in the amount of $50 shall be assessed, and the vehicle shall be detained until payment is collected by the law enforcement officer.

   
   

   1. In addition to the penalty provided for in paragraph (a), the vehicle may be detained until the owner or operator of the vehicle furnishes evidence that the vehicle has been properly registered pursuant to Section

      207.004. Any officer or agent of the Department of Transportation may issue an emergency trip permit and collect the appropriate fee as provided for in Section 207.004(4). Notwithstanding the provisions of subsection (6), all permit fees collected pursuant to this paragraph shall be transferred to the Department of Highway Safety and Motor Vehicles to be allocated pursuant to Section 207.026.

      
      

      Section 320.0715, Florida Statutes provides for registration of commercial motor vehicles, engaged in interstate commerce, under the International Registration Plan. Section 320.0715, Florida Statutes, provides in relevant part:

      
      

      (2)(b) . . . In those cases when the commerical 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 its 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. ...

      
      

      Section 320.02, Florida Statutes provides in part:

      
      

      (1) Except as otherwise provided in this chapter, every owner of person in charge or a motor vehicle which is operated or driven on the roads of this state shall register the vehicle in this state. . . .

8. Section 207.004, Florida Statutes, provides in part: (1)(a) No motor carrier shall operate or

   cause to be operated in this state any commercial motor vehicle, other than a Florida-based commercial motor vehicle which travels Florida intrastate mileage only, which uses special fuel or motor fuel until such carrier has registered with the department and has been issued an identifying device for each vehicle operated. There shall be a fee of $4 per year or any fraction thereof for each such identifying device used. The identifying device shall be provided by the department and must be conspicuously displayed on the commercial motor vehicle while it is being operated on the public highways of this state. The transfer of an identifying device from one vehicle to another vehicle or from one motor carrier to another motor carrier is prohibited. . . .

   
   

   1. The motor carrier to whom an identifying device has been issued shall solely responsible for the proper use of the identifying device by its employees, consignees, or lessees.

      
      

      (4) A motor carrier prior to operating a commercial motor vehicle on the public highways of this state must display an identifying device as required under subsection (1) or must obtain an emergency or trip permit or annual permit for that vehicle. An emergency or trip permit shall expire within 10 days after date if issuance. The cost of an emergency or trip permit shall be $45, which shall exempt the vehicle from the payment of the motor fuel or special fuel tax imposed under this chapter during the term for which the permit is valid. However, the vehicle shall not be exempt from paying the fuel tax at the pump.

9. Section 15C-12.004(4), Florida Administrative Code, requires a Fuel Use Tax Cab Card to be kept in the cab of commercial vehicles. Such cards must be available for presentation to motor carrier compliance officers or inspectors upon demand.

   
   

10. In this case, Unrah Fab, Inc., received adequate notice of the date, time and place of the hearing. However, Respondent did not appear at the hearing and did not present any evidence to rebut the correctness of the Department's assessments. Therefore, given the above statutes and facts in this case, Respondent was correctly assessed fees and penalties totaling $521.00 pursuant to Sections 207.004 and 316.545(4), Florida Statutes, and Chapter 320, Florida Statutes, for not displaying a fuel use tax identifying device and not having a fuel use tax registration and not having a Florida vehicle registration or I.R.P. registration when operating on a highway in the State of Florida.

RECOMMENDATION

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

That a Final Order be entered finding that the fee and penalty totaling

$521.00 was correctly assessed Unrah Fab, Inc., by the Department of Transportation, under provisions of Sections 207.004 and 316.545, Florida Statutes, and Chapter 320, Florida Statutes.

DONE and ENTERED this 1st day of June, 1992, in Tallahassee, 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 1st day of June, 1992.

ENDNOTES

1/ Florida is not a port of entry state for purposes of commercial motor vehicle permits. The procedure is that before a vehicle is operated in the state it must be registered with the State of Florida with a straight license plate or be registered under the International Registration Plan to operate in the State of Florida. Also, it has to have fuel use tax permits or registration in the vehicle. The State of Florida does not allow vehicles to drive to weight stations to purchase permits to operate in the state.

APPENDIX TO CASE NO. 91-5769

1. The facts contained in paragraphs 1, 2 and 3 of Petitioner Proposed Findings of Fact are adopted, in substance, in so far as material.

COPIES FURNISHED:

Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner, M.S. 58

Thornton J. William, General Counsel Department of Transportation

Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Harley Schmidt, President Unruh Fab, Inc.

Post Office Box 195 Sedgwick, Kansas 67135

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 consult with 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: 91-005769

Orders for Case No: 91-005769