STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8005

)

WHITTINGTON PRODUCE, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 12, 1992, a telephone hearing was conducted in this case. This was a formal hearing held in accordance with Section 120.57(1), Florida Statutes.

Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Charles G. Gardner

Assistant General Counsel Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458

For Respondent: Terry E. Whittington, pro se

Post Office Box 33 Hollansburg, OH 45332

PRELIMINARY STATEMENT

Respondent sought a formal hearing pursuant to Section 120.57(1), Florida Statutes, to oppose the imposition of penalties in the amount $2,018.00 and

$2,052.00 respectively concerning the operation of its commercial vehicles in Florida on September 13, 1991. The case was referred to the Division of Administrative Hearings and following continuance of a hearing date scheduled for February 24, 1992, the hearing was conducted on the date previously described.

At hearing Petitioner presented the testimony of the witnesses Karon Ann Majors and William Richard Ledden together with two exhibits which were admitted as evidence. Terry E. Whittington testified for Respondent.

The parties were allowed the opportunity to submit proposed recommended orders. Respondent requested an extension of time to offer its proposed recommended order. Some confusion arose concerning the amount of time that would be allowed. This caused the Respondent to submit its letter in argument with attached exhibits on a date before the Petitioner offered its proposed recommended order. Petitioner asked leave to submit its proposed recommended order on a date subsequent to the date upon which the letter had been submitted

by Respondent. This request by the Petitioner met with opposition by the Respondent. Having considered these matters, the letter in argument by Respondent and the proposed recommended order by Petitioner are accepted.

FINDINGS OF FACT

1. On September 13, 1991, Respondent was operating two commercial vehicles in Hillsborough County, Florida, when they were stopped by the Petitioner and weighed. The first vehicle was a 1988 Freightliner which weighed 75,360 pounds or 40,360 pounds above a 35,000 pound weight limit. The second vehicle a 1989 White/GMC weighed 76,040 pounds or 41,040 pounds over a 35,000 pound weight limit. Respondent did not contest the weights assigned in the inspections that took place on September 13, 1991, nor the calculation of the amount of fine associated with the vehicles for being over weight. The trucks were not registered in Florida and did not have evidence of an apportioned registration from some other state. Neither did the commercial vehicles have a single trip permit. As a consequence a 5 cents per pound penalty was assessed for weight above the 35,000 pound limit. In the instance of the Freightliner that penalty was $2,018.00 and the penalty for the White/GMC was $2,052.00.

   
   

2. The vehicles were from the state of Ohio, a state which was participating in the International Registration Plan on the date in question; however, the Ohio registration for the vehicles did not indicate apportionment for Florida.

   
   

3. Terry Whittington the President for Whittington Produce, testified that Ohio had recently become a state which participated in the reciprocity related to the International Registration Plan. He identified that the business of the Respondent is hauling, in this instance hauling poultry; and that his company suffered a 3 percent financial loss on this trip in which the industry standards call for delivery of all but a quarter to a half percent of the product. This loss was associated with having to gain compliance with the registration requirements on the date in question and the time necessary to accomplish that task. The customer has not asked the Respondent to haul its poultry following the loss.

   
   

4. Whittington referred to the possibility that Ohio was remiss in getting information to them about apportionment for registration by not meeting deadlines on licensing and getting information to the Respondent when Respondent received the registration plates for the commercial vehicles in question. Whittington refers to the fact that it was after June 30, 1991 or July 1, 1991, when Respondent began to get information from the state of Ohio to deal with the participation in reciprocity associated with the International Registration Plan and by then Respondent had already "filed" about every place that it was going to "file." Whittington believes that his company got caught short on paperwork. Whittington also referred to the belief that he held on September 13, 1991, to the effect that Ohio was a reciprocity state and the operation of the commercial vehicles in Florida was in compliance with all requirements, especially given a 300 percent increase in 1991 related to the Ohio licensing costs.

   
   

5. In the submission of the letter in argument Respondent attaches what is referred to as a supplemental application to the State of Ohio, Bureau of Motor Vehicles, International Registration Plan which adds the State of Florida to its apportionment in the registration for the two vehicles in question, among others. The letter in argument continues to refer to May, 1991 as the date upon which Ohio began to participate in the International Registration Plan and the

   belief that the rules and laws were different than they were before with the advent of this participation by Ohio. The argument continues to assert that the Respondent believed that it was in compliance when it entered the State of Florida and that when the Respondent found out that it was not it did arrange for apportionment with Florida, which the exhibits attached to the letter in argument refer to. This is the after the fact or supplemental application to add Florida as an apportioned state for the Ohio registration pertaining to the subject vehicles in question.

   
   

6. In summary Respondent believes that the fines are exorbitant and not in keeping with the purchase of a license to operate in Florida and Respondent asks that the fines be lowered.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

   
   

8. Under authority set forth in Section 316.545(2)(b), Florida Statutes, Petitioner in entitled to assess penalties in the amount of $2,018.00 and

   $2,052.00 respectively for the operation of the two commercial vehicles on September 13, 1991, in Florida without benefit of an appropriate registration or temporary trip permit. Section 316.545(2)(b) states in pertinent part:

   
   

   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 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 s. 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 wherein shall apply on the basis of

   5 cents per pound on that weight which exceeds 35,000 pounds. . . .

   
   

9. The imposition of the monetary penalty is mandatory. Although Respondent appeared uncertain and confused by the change in the circumstance in Ohio when Ohio became a participant in the International Registration Plan, the opportunity to mitigate the penalties is not found within Section 316.545(2)(b), Florida Statutes.

RECOMMENDATION

Based upon the consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a Final Order be entered which assesses penalties in the amount of

$2,018.00 and $2,052.00 respectively thus denying the request for refund.

DONE and ENTERED this 25th day of June, 1992, in Tallahassee, Florida.

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation

CHARLES C. ADAMS, 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 25th day of June, 1992.

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

Tallahassee, FL 32399-0458

Terry E. Whittington Post Office Box 33 Hollansburg, OH 45332

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

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: 91-008005

Orders for Case No: 91-008005