STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2033

) PROFESSIONAL AUTO TRANSPORT, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida on May 18, 1992 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Vernon L. Whittier, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

For the Respondent: Richard L. Hurley, President

Professional Auto Transport, Inc. Box 492

Lakewood, New Jersey 08701 STATEMENT OF THE ISSUES

The issue for consideration in this hearing was whether the Department should refund to Respondent an assessed fee and penalty in the total amount of

$95.00 for failure to display a fuel use permit on its tractor.

PRELIMINARY MATTERS

By letter dated January 14, 1992, Richard L. Hurley, President of the Respondent Professional Auto Transport, Inc., (PAT), requested a formal hearing on the Department of Transportation's, (Department), denial of its appeal of a fee and penalty assessment in the total amount of $95.00 imposed as a result of fuel tax violation No. 55700 on October 7, 1991.

On March 25, 1992, the Department forwarded the matter to the Division of Administrative Hearings for appointment of a Hearing Officer, and by Notice of Hearing dated April 23, 1992, after Respondent responded to the Initial Order filed herein, the undersigned set the matter for hearing in Tallahassee on May 18, 1992 at which time it was heard as scheduled.

At the hearing, Petitioner presented the testimony of Officer Ralph Vargas, Jr., a representative of the Department's Office of Motor Carrier Compliance,

and introduced Petitioner's Exhibit 1. Mr. Richard Hurley, testified on Respondent's behalf. The undersigned, with the concurrence of both parties, officially recognized Sections 316.545(4)(a) & (b); 207.004(1)(a) & (b); and 207.004(4), Florida Statutes, and Chapter 15C-12, F.A.C.

No transcript was provided. Petitioner submitted Proposed Findings of Fact which have been accepted and are incorporated in this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, the Petitioner, the Department, was the state agency responsible for the licensing and monitoring of the operation of interstate motor carriers in this state. The Respondent, PAT, was an interstate motor carrier of automobiles operating over the roads of this state.

   
   

2. On October 10, 1991, Officer Ralph Vargas, an officer with the Department's Office of Motor Carrier Compliance stopped the Respondent's automobile carrier being operated by an employee of the Respondent in Boynton Beach, Florida, going north on US Highway #1. The stop was a random routine Level III safety inspection. Review of the documents carried by the driver reflected that the driver's driver license and the vehicle registration were in order. However, a review of the outside of the cab revealed that there was no required fuel decal being displayed.

   
   

3. The driver showed Officer Vargas the cab card issued by the State of Florida for the fuel decal reflecting a decal had been issued for this vehicle. However, the decal was not displayed on the outside of the vehicle even though Mr. Vargas could see an area where an decal had been affixed. He can not recall whether he felt the area to see if it was sticky and he was unable to determine whether the former decal had been issued by the State of Florida or not. He did not see a CVSA, (Commercial Vehicle Safety Alliance) decal either.

   
   

4. As a result of this infraction, Mr. Vargas assessed a penalty in the amount of $50.00 and issued a temporary permit at a cost of $45.00, both of which were paid by the driver at the scene. It is this penalty and permit which the Respondent contests. The pertinent statute in issue here required a vehicle of this kind to have both a cab card and a fuel decal which must be affixed to the vehicle.

   
   

5. Mr. Vargas also issued the driver a warning for having an unauthorized passenger, (his son) on board and for not having his log book current.

   
   

6. Mr. Hurley contends that just one week prior to this stop, the vehicle and driver were in California where a CVSA inspection was accomplished. While this was being done, Mr. Hurley personally inspected the vehicle to insure that all required decals were affixed. Again, before the truck left New Jersey on the instant trip, he again checked to insure the required decals were there. They were.

   
   

7. Because he is aware of the extended time required to get a replacement decal for a vehicle, Mr. Hurley routinely purchases several extra $4.00 cab card and fuel decal sets for his trucks so that if, as here, one is lost or removed, he can, upon notice, get a replacement to the driver overnight. Here, he claims the decal must have been peeled off by someone while the vehicle was on this trip. It is his experience that Florida's decals are easily pulled off and,

   unlike the decals in some other states, there is no built in voiding process which would void the decal in the event it is stolen.

   
   

8. Here, Mr. Hurley claims, the driver did not know the decal was gone. Had he known, he could have called the home office on the truck phone and have it delivered. It is so found.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Under the provisions of Section 316.545, Florida Statutes, the Department of Transportation is given the authority to enforce the provisions of the weight, load, safety, registration and fuel tax compliance laws of this state relating to commercial motor vehicles, and consistent therewith, to levy fines as appropriate.

11. Section 316.545(4)(a), Florida Statutes, states, in pertinent part: No commercial vehicle, as defined in s.

    316.003(66), shall be operated over the highways of this state unless it has been properly registered under the provisions of s. 207.004.

    
    

12. Section 207.004, Florida Statutes, provides that a motor carrier shall not operate in this state any commercial motor vehicle which uses special fuel or motor fuel until it has registered with the Department and has been issued an identifying device for that vehicle. This identifying device must be "conspicuously displayed on the commercial vehicle while it is being operated on the public highways of this state." The operator of the vehicle is solely responsible for the proper use of the identifying device. The statute also provides, in subsection (4), that the device must be displayed by being affixed to the leading edge of the power unit door in such a manner that it cannot be removed without defacing the decal, and the related cab card must be kept in the cab of the vehicle.

    
    

13. The evidence in this case shows, and Professional Auto Transport, Inc. admits, that the decal issued for this vehicle was not affixed to it at the time it was stopped by Officer Vargas for the random safety inspection.

    However, the cab card was being carried in the vehicle cab, and Mr. Vargas indicates he could see an area on the cab where "a" decal had been affixed.

    
    

14. Considering Mr. Hurley's testimony that he insures all his vehicles have the required and appropriate documentation, including decals, before they are set out, and even buys extras so that if, as here, one should be lost in some fashion, and, in addition, the fact that the required cab card was in the vehicle as required, it is hard to conclude the absence of this decal here was the result of a volitional intent to escape compliance with the registration requirements of the Department. To the contrary, it is clear the required decal was affixed and, somehow, was removed by someone unknown.

    
    

15. The instant proceeding is not a criminal prosecution, however, and there is no requirement for the state to prove here that the conduct complained of was done with an intent to violate the law or, for that matter, that the

    Respondent knew the decal was missing. The statute in issue requires a decal to be affixed to the vehicle and while one might reasonably conclude this had been done, the evidence is clear that when the vehicle was stopped, the required decal was missing. This situation constitutes a technical violation of the statute and the $50.00 civil "penalty" provided for therein may be collected.

    That the officer could have detained the vehicle and allowed the driver to contact the home office to arrange for the emergency shipment of a replacement is irrelevant. He was under no obligation to do so and his action was technically correct.

    
    

16. By the same token, once having determined the violation had taken place, the officer was, under the terms of the statute, authorized to issue an emergency trip permit at a cost of $45.00. Here again, the officer elected to do that, and under the circumstances of the instant case, it cannot be said his action was illegal.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered herein denying Professional Auto Transport, Inc.'s request for a refund of the $50.00 civil penalty and $45.00 permit fee.

RECOMMENDED this 12th day of June, 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

Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1992.

COPIES FURNISHED:

Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

Richard L. Hurley President

Professional Auto Transport, Inc. Box 492

Lakewood, N.J. 08701

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 Bldg. 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: 92-002033

Orders for Case No: 92-002033