STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1875

)

JESSE SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on September 3, 1992, in Tampa, Florida.

APPEARANCES

For Petitioner: Paul Sexton, Esquire

Assistant General Counsel Florida Department of

Transportation

605 Suwanee Street, M.S. 58

Tallahassee, Florida 32399-0450

For Respondent: Jesse Smith, pro se

114-L Mitchell Road

Land O' Lakes, Florida 34639 STATEMENT OF THE ISSUES

Whether Respondent's request for a refund of a penalty assessed against him for operating a commercial vehicle with an expired license registration should be granted.

PRELIMINARY STATEMENT

Respondent, Jesse Smith (Smith), paid a penalty assessed against him in the amount of $2,059.00 for driving a commercial vehicle on the highways in the State of Florida with an expired vehicle registration. The penalty was paid under protest and Respondent applied to the Commercial Motor Vehicle Review Board (the Board) for a refund. On February 13, 1992, the Board denied Respondent's second request for a refund. Respondent timely requested a formal hearing regarding that denial. The matter was transferred to the Division of Administrative Hearings on March 25, 1992, and was promptly scheduled for hearing.

During the hearing, the Department of Transportation (the Department) presented two witnesses and filed two exhibits. The Respondent called one

witness and testified in his own behalf. A transcript was ordered and filed with the Division of Administrative Hearings. Both parties waived their opportunity to file proposed findings of fact.

FINDINGS OF FACT

1. A commercial vehicle owned by Garrett Enterprises of Tampa, Inc. and operated by Respondent Smith entered the weigh station located on I-4 West in Plant City, Hillsborough County, Florida, on August 8, 1991.

   
   

2. During the routine inspection, it was discovered that the vehicle's registration had expired on May 31, 1991. The tag on the vehicle clearly bore the expiration date.

   
   

3. The statutory legal weight of 35,000 pounds for an expired registration was subtracted from this vehicle's tax class weight of 76,180 pounds to determine the amount by which the vehicle was overweight. A penalty of 5 cents a pound was assessed upon the difference of 41,180 pounds which amounted to a fine of $2,059.00.

   
   

4. Respondent Smith has driven commercial vehicles in Florida for seven years. Prior to the registration at issue in this proceeding, he had never purchased an apportioned tag. Although he was originally aware that the apportioned tag he purchased would expire on May 31, 1991, he did not pay attention to the expiration date noted on the tag because he assumed the Department of Highway Safety and Motor Vehicles would mail him a renewal notice prior to its expiration.

   
   

5. The Department of Highway Safety and Motor Vehicles does not mail renewal notices to owners of vehicles with apportioned tags. Respondent did not become aware of this variation in the Department's notification policy until after his vehicle was inspected and he had paid the penalty.

   
   

6. Respondent had the vehicle registration renewed within ten days after the instant fine was levied.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

8. Section 316.545(2)(b), Florida Statutes, provides, in part, as follows:

   
   

   In those cases when the commercial vehicle

   . . . 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 . . .

   
   

   In this case, the Respondent concedes that he operated a commercial vehicle over the highways of this state with an expired registration, that the Department

   assessed a fine against Respondent in the amount of 5 cents per pound on that weight which exceeded 35,000 pounds, and that the fine assessed against and paid by Respondents was in the amount of $2,059.00.

   
   

9. Section 316.545(8), Florida Statutes, provides that any person aggrieved by the imposition of a civil penalty pursuant to Section 316.545 may apply to the Commercial Motor Vehicle Review Board and that Board may modify, cancel, revoke, or sustain such penalty. Respondent Smith contends that the penalty assessed against him should be modified because he detrimentally relied upon the Department of Highway Safety and Motor Vehicles to send him a renewal notice in the mail. It was not until after he was assessed the penalty in this cause that he became aware that the Department of Highway Safety and Motor Vehicles does not send renewal notices on apportioned tags.

   
   

10. While Respondent's argument clearly demonstrates that his failure to have a valid vehicle registration was unintentional, Section 316.545 does not require intent. Pursuant to Section 320.02(1), Florida Statutes, the vehicle owner or person in charge of the vehicle is responsible for the registration of the vehicle. This legal duty cannot be shifted to another person or agency. The fact that Respondent had allowed himself to become unaware that the vehicle registration had expired does not relieve him of the responsibility for having a valid vehicle registration. The tag attached to the vehicle revealed the expiration date. Respondent has shown no legally recognizable special circumstance which prevented him from knowing the expiration date of the vehicle's registration or which prevented him from obtaining a valid registration before operating the vehicle on the highways of this state.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that a Final Order be entered finding that the penalty of

$2,059.00 was correctly assessed and denying Respondent's request for a refund or a reduction.

DONE and ENTERED this 19th day of October, 1992, at Tallahassee, Florida.

VERONICA E. DONNELLY

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 19th day of October, 1992.

COPIES FURNISHED:

Paul Sexton, Esquire Assistant General Counsel Florida Department of

Transportation

605 Suwanee Street, M.S. 58

Tallahassee, FL 32399-0450

Jesse Smith

114-L Mitchell Road

Land O' Lakes, FL 34639

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

Tallahassee, FL 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

605 Suwanee 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 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: 92-001875

Orders for Case No: 92-001875