STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2164

)

1. RICE ROOFING, INC., )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   A hearing was held in this case in West Palm Beach, Florida on June 25, 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: John T. Rice

   1. Rice Roofing, Inc. 2458 Oklahoma St.

W. Palm Beach, FL 33406 STATEMENT OF THE ISSUES

The issue for consideration herein is whether Respondent's truck was in violation of the Department's weight limits when stopped on Haverhill Street in West Palm Beach on June 6, 1992, and if so, what is the appropriate penalty.

PRELIMINARY MATTERS

Respondent, A Rice Roofing, Inc., received a citation from the Petitioner, Department of Transportation, alleging that on June 6, 1992 its 1981 Ford truck, being operated on the public streets of Palm Beach County, Florida was overweight, and imposing a civil penalty of $90.05. Respondent requested a formal hearing and on April 7, 1992, the matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. On June 10, 1992, after the parties' response to the Initial Order entered herein, the undersigned issued a Notice of Hearing setting the matter for hearing in West Palm Beach on June 26, 1992 at which time it was held as scheduled.

At the hearing, Petitioner presented the testimony of Joseph Borras, a weight and vehicle registration enforcement officer with the Department's Office of Motor Carrier Compliance and introduced Petitioner's exhibit 1. Respondent presented the testimony of John T. Rice, owner of A. Rice Roofing, Inc., and Christine E. Rice, Secretary.

No transcript was provided. Subsequent to the hearing, Petitioner's counsel submitted Proposed Findings of Face which have approved and are incorporated in this Recommended Order. Respondent submitted comments in writing which have been carefully considered in the preparation of this Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department of Transportation was the state agency responsible foe enforcing the statutes involving commercial carrier and truck vehicle weight 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. On January 6, 1992, Officer Borras stopped the Respondent's 1981 White truck, which was proceeding northbound on Haverhill Road in West Palm Beach, for a routine weight and safety check. Using a set of portable scales which are calibrated by the Florida Department of Agriculture's Division of Weights and Measures every 6 months, and following the Department's routine procedure of weighing at each axle and combining the two figures, Borras determined the Gross Vehicle Weight/load of the truck was 27,800 pounds.

   
   

3. The maximum legal weight of the vehicle in issue, including the 10% tolerance, was 25,999 pounds. Therefore, according to the Department's scales, Respondent's vehicle was overweight by 1,801 pounds. Applying the statutory penalty of 5 per pound of overweight, resulted in Respondent being assessed a total penalty of $90.05 for this alleged violation. Since the Respondent's driver was driving with an expired driver's license, Mr. Rice was called to the scene to remove the vehicle. Mrs. Rice, as Secretary of the corporation, was required to produce the $90.05 in cash even though Department procedures provide for payment of a penalty by company or certified check.

   
   

4. The Department's scales are supposed to be calibrated for accuracy every 6 months. The scales used by Officer Borras had last been calibrated on July 16, 1991, almost 6 months previously, and were due for re-calibration in January, 1992. In the experience of Lt. Thomas Carnicella, also of the Department's Office of Motor Carrier Compliance, the portable scales are considered to be possibly off to some degree. For that reason, the 10% tolerance is added to the authorized vehicle weight.

   
   

5. Immediately after the citation was issued and the penalty paid, the vehicle was released to Mr. Rice who drove it, loaded with roofing waste, to the Palm Beach County dump where it was again weighted, both with full load and then empty after dumping, to determine the amount of dumping fee to be assessed. According to the County's in-ground permanent scales, which reportedly had been calibrated 3 days previously, Respondent's loaded vehicle was weighed at 24,280 pounds, or 1,719 pounds under the legal weight of 25, 999 pounds.

   
   

6. On a prior occasion, Respondent's vehicle was also cited by the Department for being overweight, as here, and a penalty assessed. At that time, the dump scales and the Department's portable scales read almost the same. For that reason, Respondent did not protest the action and assessment. In this case, however, the discrepancy was considerable and because of that fact and the fact the citation indicated, incorrectly, that the truck was green, the protest was filed.

7. Officer Borras explained the color discrepancy as having been the result of his confusion due to several vehicles being stopped at once, one of which was green. There is no doubt in his mind, however, that the Respondent's vehicle was the one cited for overweight and it is so found.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. By the provisions of Section 316.545, Florida Statutes, the Department of Transportation is granted the authority to enforce the provisions of the laws of this state regarding weight, load, safety, registration and fuel tax consumption of commercial carriers operating on the roads and highways of Florida and to levy penalties for the violations of those laws.

   
   

10. Subsection (2) of that provision directs compliance officers to:

    
    

    ... inspect the license plate or registration certificate of the commercial vehicle ... to determine if its gross weight is in compliance with the declared gross vehicle weight....

    
    

11. In the event the vehicle is found not to be in compliance with the weight requirements, the Department shall levy a fine of 5 per pound on the excess. To determine the excess, the Department shall weight the vehicle using scales routinely calibrated for accuracy and thereafter compare that recorded gross weight against the maximum gross vehicle weight for that vehicle declared by the owner whose responsibility it is, by law, to make such declaration at the time the owner applies for vehicle registration. Section 320.01, Florida Statutes, places upon the owner or person applying for vehicle registration the burden to declare the maximum gross weight of the vehicle being registered.

    
    

12. Gross vehicle weight is determined under that section by adding to the net weight of the vehicle, as defined by the manufacturer, the weight of the maximum load to be carried by it. In the instant case, the gross vehicle weight of the truck in question was to be no more than 25,999 pounds. At weighing by the compliance officer, the vehicle was found to weight 27,800 pounds, but shortly thereafter, at the dump, it was found to weigh 24,280 pounds or 3,520 pounds less.

    
    

13. Ordinarily, because the Department's scales are routinely calibrated for accuracy every 6 months, and because there is usually no evidence of the accuracy of the successor scales, the Department's weight is accepted. In this case, however, the evidence shows that the Department's scales were due for re- calibration during the month of weighing and had not been calibrated for six months. On the other hand, there is some evidence that the dump scales had been calibrated within several days of the weighing and, though hearsay, there is some evidence to establish that in-ground scales, if properly maintained and calibrated, are somewhat more accurate that portable scales of similar maintenance.

    
    

14. Though the evidence regarding the accuracy of the dump scales is not sufficient to establish with certainty that they were accurate, when coupled with the fact that the portable scales had not been recently calibrated and were

due for re-calibration immediately, there is sufficient question raised to conclude that the Department has not satisfied its burden to establish the violation by a preponderance of the evidence. The fine assesses and collected should be set aside and the funds reimbursed to the Respondent.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered in this case setting aside the civil penalty in the amount of $90.05 assessed against A. Rice Roofing, Inc., and directing reimbursement in that amount.

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, M.S. 58

Tallahassee, Florida 32399-0458

John T. Rice

A. Rice Roofing, Inc. 2458 Oklahoma Street

Tallahassee, Florida 33406

Ben G. Watts Secretary

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel

Department of Transportation 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: 92-002164

Orders for Case No: 92-002164