STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1873

) KENNETH PRATT, d/b/a K AND P ) TRUCKING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard by telephone before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 15, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mark Hankins, Esquire

Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458

For Respondent: Kenneth Pratt, pro se

P. O. Box 2306

Platte City, Missouri 64079 STATEMENT OF THE ISSUES

The issue is whether respondent should have a penalty in the amount of

$2,139 assessed for allegedly violating Section 316.545, Florida Statutes.

PRELIMINARY STATEMENT

This matter began on February 18, 1992, when petitioner, Department of Transportation, denied a request by respondent, Kenneth Pratt, d/b/a K and P Trucking, that it reconsider a fine imposed on respondent for allegedly violating Section 316.545, Florida Statutes (1991), by operating a truck which exceeded the lawful weight limitations. More specifically, respondent had previously been cited on October 31, 1991, for operating a truck in Hamilton County, Florida, which exceeded legal weight limitations by 42,780 pounds and carried an expired registration. For this violation, petitioner was required to pay a fine in the amount of $2,139, or five cents for each excessive pound.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1991), to contest the proposed agency action. The matter was referred by petitioner to the Division of Administrative Hearings on March 25, 1992, with a request that a Hearing Officer be assigned to conduct a hearing. By agreement of the parties, the matter was heard by telephone on May 15, 1992.

At final hearing, petitioner presented the testimony of Lillian Bennett, a DOT weight and safety officer, and Elyse S. Kennedy, executive secretary of the Commercial Motor Vehicle Review Board. Also, it offered petitioner's exhibits

1-5. All exhibits were received into evidence. Respondent testified on his own behalf and presented the testimony of Marilyn Kelsey, an employee. Also, he offered respondent's exhibit's 1-6. All exhibits were received in evidence.

The transcript of hearing was filed on May 28, 1992. Proposed findings of fact and conclusions of law were filed by petitioner on June 9, 1992. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Respondent, Kenneth Pratt, operates a trucking firm under the name of K and P Trucking. The firm's address is P. O. Box 2306, Platte City, Missouri. When operating a commercial motor vehicle (truck) on the roads and highways of this state, Pratt is subject to the weight and load limitations and vehicle registration requirements prescribed in Chapter 316, Florida Statutes. That chapter is administered and enforced by petitioner, Department of Transportation (DOT).

   
   

2. On October 31, 1991, respondent's truck was stopped by a DOT weight and safety officer for a routine inspection at the weight scales on Interstate 75 near White Springs, Florida. The total gross weight of the truck was found to be 77,780 pounds, consisting of 11,460 pounds on the steering axle, 32,600 pounds on the drive tandum and 33,720 pounds on the rear tandem.

   
   

3. During the inspection, the officer discovered that respondent's international registration plan (IRP) temporary operational permit had expired three days earlier, or on October 28, 1991. A valid permit is required to be affixed to the truck as a prerequisite to legally operating on the roads and highways of this state.

   
   

4. When a truck is operating without a valid IRP, the vehicle is authorized to carry a total gross load, including the weight of the vehicle, of only 35,000 pounds.1/ For any pound in excess of that weight, DOT is authorized to impose a fine of five cents for each excessive pound. Therefore, respondent was fined $2,139, or five cents times 42,780 pounds. After respondent's appeal to the Commercial Motor Vehicle Review Board was denied, this proceeding ensued.

   
   

5. Respondent does not deny that his truck was operating with an expired IRP on October 31, 1991, and that the vehicle had a gross load of 77,780 pounds. However, he points out that in September 1991 he traded in a used truck on a newer model with a truck dealer known as Midwest Kenworth. During the course of that transaction, the dealer accidentally destroyed the base plate and cab card which prevented their transfer to the new vehicle. Because of this, respondent obtained a temporary permit from the Missouri Highway Reciprocity Commission (Commission) which expired on October 28, 1991. At the same time, he ordered a "supplement" to replace the destroyed cab card and base plate. However, in order to secure the new card and plate, it was necessary to file an affidavit with the Commission. Respondent failed to do this when he filed his application and the application was eventually rejected. By the time an affidavit was prepared, the appropriate fees paid, and the new card and plate issued by the

   Commission on November 1, 1991, the temporary IRP had expired some three days earlier, or on October 28, 1991.

   
   

6. The truck which was stopped by DOT on October 31, 1991, was based in Covington, Georgia, when the temporary permit expired on October 28. According to respondent, he did not know that the driver intended to travel to Florida on October 31, 1991, without first obtaining a valid permit. However, respondent made no effort on or after October 28 to communicate with the driver and advise him not to proceed until the new permit was obtained, and Pratt says he was unaware that a second temporary permit to operate in Florida could be obtained by contacting the Motor Carrier Services Bureau of the Department of Highway Safety and Motor Vehicles before his vehicle entered the state. Respondent concedes that the delay in obtaining a new permit was his own fault but he asks that he be given leniency due to these extenuating circumstances. However, there is no statutory authority nor DOT policy which would authorize DOT to waive a fine under these conditions.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

   
   

8. Petitioner bears the burden of proving by the preponderance of the evidence that a violation of the law occurred. Fla. Department of Transportation v. J.W.C. Company, Inc., 397 So.2d 778, 787 (Fla. 1st DCA 1981).

   
   

9. Relevant to this proceeding is the following portion of Subsection 316.545(2), Florida Statutes (1991):

   
   

   * * *

   
   

   (b) 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 herein shall apply on the basis of 5 cents per pound on that weight which exceeds 35,000 pounds.* A vehicle found in violation of this section may be detained until the owner or operator produces evidence that the vehicle has been properly registered. Any costs incurred by the retention of the vehicle shall be the sole responsibility of the owner. A person who has been assessed a penalty pursuant to

   this paragraph for failure to have a valid vehicle registration certificate pursuant to the provision of chapter 320 is not subject to the delinquent fee authorized in s. 320.07 if such person obtains a valid registration certificate within 10 working days after such penalty was assessed. (Emphasis added between the *)

   
   

10. The undisputed evidence shows that when stopped, inspected and weighed on October 31, 1991, respondent's vehicle had an expired IRP and was carrying a gross load of 77,780 pounds, which was 42,780 pounds in excess of the legal weight limit established by the foregoing statute. Therefore, respondent is subject to a penalty of five cents per pound for each pound the vehicle is overweight. Because there is no agency policy or statutory provision which allows the agency to waive these penalty requirements, the request to reduce or waive the fine should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by petitioner imposing a fine of

$2,139 on respondent for violating Subsection 316.545(2)(b), Florida Statutes.

DONE and ENTERED this 11th day of June, 1992, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1992.

ENDNOTES

1/ Had respondent's permit been valid, he would have been authorized to have a total gross load of 77,780 pounds.

APPENDIX

Petitioner:

1. Accepted in findings of fact 2 and 4.

2. Accepted in findings of fact 3, 5 and 6.

3. Accepted in findings of fact 5 and 6. 4-5. Accepted in finding of fact 6.

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450

Mark Hankins, Esquire

Haydon Burns Building, M.S. 58 Tallahassee, FL 32399-0458

Mr. Kenneth Pratt

P. O. Box 2306

Platte City, MO 64079

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 their 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: 92-001873

Orders for Case No: 92-001873