STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1643

)

ISLEY IRON & METAL COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on June 4, 1992, a hearing was held in this case in Tallahassee, Florida, at the Offices of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Paul Sexton

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

Tallahassee, FL 32399-0458 For Respondent: No Appearance

STATEMENT OF ISSUES

The issues concern the question of whether the Petitioner is entitled to impose a $1,660.00 assessment against Respondent for operating a commercial vehicle in Florida without appropriate registration.

PRELIMINARY STATEMENT

Petitioner, based upon a vehicle inspection of October 24, 1991, assessed a penalty of $1,660.00 as described in the Statement of Issues. Attempts to have that assessment set aside before the Commercial Motor Vehicle Review Board were unsuccessful. Therefore, the Respondent requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, to resolve the dispute. The case was referred to the Division of Administrative Hearings and a hearing was conducted on the date reflected in this recommended order.

Respondent did not appear. Petitioner offered its presentation in Respondent's absence. Given the opportunity to submit a proposed recommended order Petitioner filed that proposal to include suggested fact finding. The proposed fact finding is subordinate to the fact finding in the recommended

order with the exception of the reference to Interstate 75 in an instance in which the actual highway was Interstate 95.

FINDINGS OF FACT

1. On October 21, 1991, Respondent's commercial vehicle was inspected at the Petitioner's Yulee weight station located on Interstate 95 in Nassau County, Florida. It was discovered that the motor vehicle did not have a Florida registration. Furthermore, the South Carolina registration for the vehicle was not apportioned to allow operation in Florida. As a consequence a penalty was assessed for operating the commercial vehicle in Florida without benefit of an appropriate registration.

   
   

2. The actual amount of penalty was $1,660.00 which is reflective of the gross weight of 68,200 pounds at a price of .05 per pound of the amount in excess of 35,000 pounds.

   
   

3. Respondent paid the $1,660.00 fine plus the $30 single trip registration fee. This payment was rendered on the date that the commercial vehicle was stopped.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Section 316.545(2)(b), Florida Statutes, allows Petitioner to impose a monetary penalty for operating a commercial vehicle in Florida without an appropriate registration certificate wherein it states:

   
   

   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. . . .

   
   

6. In this instance the Respondent operated a motor vehicle without an appropriate registration certificate either issued by Florida or apportioned in another state. The weight of the vehicle exceeded the 35,000 pound limit by 33,200 pounds. A fine was assessed at 5 cents per pound on the over weight amount for a total of $1,660.00. This was a proper assessment.

RECOMMENDATION

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

RECOMMENDED:

That a Final Order be entered finding that the $1,660.00 penalty was an appropriate amount to be assessed against the Respondent on October 21, 1991, as envisioned by Section 316.545(2)(b), Florida Statutes, and that the request for refund of that amount be rejected.

DONE and ENTERED this 23rd day of June, 1992, in Tallahassee, Florida.

COPIES FURNISHED:

Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458

GayCille Swisher

Isley Iron & Metal Company 1691 Lost Mountain Road Powder Springs, GA 30073

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

Tallahassee, FL 32399-0458

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 23rd day of June, 1992.

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: 92-001643

Orders for Case No: 92-001643