STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1871

)

P.J. CONSTRUCTORS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Miami, Florida on June 24, 1992, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Vernon L. Whittier, Jr., Esq.

Department of Transportation 605 Suwannee Street, MS - 58

Tallahassee, FL 32399-0450

For the Respondent: Foster C. McAllester,

Personal Representative

P.J. Constructors, Inc. 4100 SW 70th Crt. Miami, FL 33155

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent's operation of an overweight truck over the low-limit bridge involved herein is a violation and if so, what penalty should be assessed.

PRELIMINARY MATTERS

On August 8, 12991, Respondent's vehicle was cited for crossing a low limit bridge in Palm Beach County, Florida while weighing more than was permitted on that bridge, and a penalty was assessed. By letter of December 3, 1991, Respondent requested a formal hearing and on March 24, 1992, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. By Notice of Hearing dated May 4, 1992, entered after response to the Initial Order, Hearing Officer William J. Kendrick set the matter for hearing in Miami on June 24, 1992 at which time it was held as scheduled by the undersigned to whom the file was transferred in the interim.

At the hearing, Petitioner presented the testimony of Roy B. Neff, a weight and vehicle registration enforcement officer with the Department's office of Motor Vehicle Carrier Compliance, and introduced Petitioner's Exhibits 1 and 2.

Respondent presented the testimony of Foster C. McAllester, its General manager, and introduced Respondent's Exhibit A.

No transcript was provided. Subsequent to the hearing, Petitioner's counsel submitted Proposed Findings of Fact which have been approved and are incorporated in this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department of Transportation was the state agency responsible for enforcing the statutes involving commercial carrier and truck vehicle weights on covered vehicles operated on the streets and highways of this state. It does so through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to conduct random safety and compliance inspections of commercial vehicles being operated in this state.

   
   

2. The parties agree that on August 8, 1991, Respondent, P.J. Constructors, Inc. was prime contractor to the Petitioner, Department of Transportation for the removal and replacement of a highway bridge over the Florida Turnpike where it intersects with Hood Road in Palm Beach Gardens, Florida. At the time in issue, Respondent was operating a 1981 MAC tractor trailer low boy on which it was transporting a piece of heavy construction equipment.

   
   

3. At the time in issue, Officer Neff stopped the vehicle for crossing over this bridge which was clearly posted as having a maximum weight limit for tractor trailers of 15 tons, (30,000 pounds). Following standard Department weighing procedures measuring weight at each axle and combining those weights to arrive at a total, and using portable Department scales which are calibrated every 6 months for accuracy, Officer Neff determined the vehicle weight at 54,800 pounds. This was 24,800 pounds over the legal weight and resulted in a penalty assessment of $1,240.00 at 5 per pound of overweight.

   
   

4. The approaches to this bridge were clearly marked at several locations with signs indicating the maximum weight permitted for this type vehicle was 15 tons. These signs were located at sites which were far enough away from the bridge to give a driver ample notice of the restrictions and ample opportunity to turn around or to take an alternate route over roads situated between the signs and the bridge.

   
   

5. In addition to the signs, however, earlier the same day, as warnings were issued to users of the bridge who were going to a construction site on the other side, Respondent's driver was specifically told of the bridge's low limits and advised of an alternate route to avoid it. Admittedly, the alternate routes would be longer than the route over the bridge, but no evidence as presented by either party as to how much the difference was.

   
   

6. Respondent's General Manager, Mr. McAllester, claims the signs were not in position on the two occasions he visited the site during the bid process in February or March, 1991. He cannot say that he knew where the signs might have been located (away from the site), but avers only that he did not see any. However, officer Neff specifically checked to see that the signs were in place before issuing the citation on August 8, 1991 and it is, therefore, found that the signs were properly in place on that date.

7. Mr. McAllester also urges in the alternative, however, that even if the signs were in place, as contractor on the bridge replacement project, the terms of the bid specifications, which directs contractors from operating equipment in excess of the maximum weights set out by law, exempts the contractor where the existing road or bridge is to be removed as a part of the work included in the project.

   
   

8. The bridge in issue here was removed and replaced as a part of the project on which Respondent was contractor and the current bridge has no limit.

   
   

9. Mr. McAllester admits that when the instant citation was issued, Respondent had no special permit to cross the bridge with an excess load. Once the citation was issued, however, Respondent quickly retained an engineer to do a structural analysis of the bridge in issue. Based on that analysis, Respondent thereafter sought and obtained permission to cross the bridge with an overload provided all other traffic was stopped on Hood Road while the excessively laden vehicle was on the bridge so it would be the only vehicle thereon at the time, and provided that vehicle kept to the center of the road while on the bridge. Subsequent to the citation and before the permit was issued, Respondent did not operate any excessively laden vehicles on the bridge.

   
   

10. Respondent admits that at the time the citation was issued, there was traffic operating both on the Turnpike and on Hood Road. Therefore, a potential danger to the public existed. Nonetheless, traffic was maintained on both roadways throughout the entire project without incident. None of the weight limits or a need to maintain weight standards was discussed at the pre-bid conference, however.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Under the provisions of Section 316.545, Florida Statutes, the Department of Transportation is given the authority to enforce the weight, load, safety, registration and fuel tax compliance laws of this state relating to commercial carriers operated on the roads and highways of this state and to assess and levy fines for the violation thereof.

    
    

13. The Department has also been granted the authority, under Section 316.555, Florida Statutes, to prescribe for loads and weights and speed limits on the roads and highways under state jurisdiction whenever, in its judgement, any road, bridge or culvert shall, because of its design or condition, be liable to be damaged by motor vehicles of a weight in excess of those load, weight or speed limits. Under this provision, as a predicate to such enforcement action, the Department must post a notice as to the pertinent limits in a conspicuous place at terminals of intermediate crossroads and junctions with that portion of

    ,the highway. Once such notice has been placed, it is a violation to operate an excessively loaded or weighted vehicle over such road.

    
    

14. Damage to the roadway, bridge or culvert is presumed by a violation of such limit and is fixed by statute, Section 316.545(3), Florida Statutes, at 5 per pound of overweight when the excess exceeds 200 pounds.

    
    

15. Here, Respondent was operating a trailer which carried heavy construction equipment when, overweight as it was by 24,800, it crossed the Hood

    Road bridge over the Florida Turnpike. Because the trailer was overloaded, because the load limitations had been properly posted, and because the driver had been specifically warned, earlier in the day, not to cross that bridge loaded as he was, the Department's enforcement officer found Respondent to be in violation and assessed the penalty as prescribed by the statute.

    
    

16. Respondent claims that the limits may not have been properly posted and that even if they were, because it was involved in a project which included the replacement of the bridge in question, it is exempt from the application of the statute under the provisions of 7-7.2 of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction, 1986 Edition. This section seems to provide for an exemption to the overloaded truck which is involved in a project which includes the removal of the existing and subject bridge.

    
    

17. However, this provision must be read in conjunction with the following provision, 7-7.3, which indicates that when it is necessary to cross over existing road or street, "... including specifically the existing traveled lanes of a divided highway within the limits of the project, ..." the contractor must apply for a permit for the crossing of overloaded or oversize equipment, and crossing will be permitted only at designated points.

    
    

18. In the instant case, the bridge in question crossed the Florida Turnpike, which are clearly existing traveled lanes of a divided highway within the limits of the project in question. To be sure, the Respondent applied for and was issued a permit to cross this bridge in an overload configuration, but not until after the instant citation was issued. In addition, the evidence clearly establishes the weight limits for this bridge were properly posted, and that the Respondent's driver was specifically warned that very morning prior to the offending crossing not to cross that bridge if overloaded. He did so anyway. Taken together, the evidence is sufficient to carry the Department's burden of proof to show, by a preponderance of the evidence, that the violation occurred.

    
    

19. Since the Respondent's vehicle weighed 54,800 pounds, 24,800 pounds over the authorized and posted limit of 15 tons, (30,000 pounds), the penalty assessed of $1,240.00 was appropriate.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered assessing a civil fine in the amount of $1,240.00 against the Respondent. P.J. Constructors, Inc.

RECOMMENDED this 22nd day of July, 1992, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

COPIES FURNISHED:

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1992.

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399-0458

Foster McAllester

Vice President and General Manager

P.J. Constructors, Inc. 4100 S.W. 70th Court Miami, Florida 33155

Ben G.Watts Secretary

Department of Transportation Haydon Burns Bldg.

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel

]Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 92-001871

Orders for Case No: 92-001871