STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO.92-3608

)

HERBERT W. ALLEN, )

d/b/a ALLEN TRANSIT, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal telephonic hearing in the above-styled case on October 22, 1992, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr., Esquire

Department Of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, FL 32399-0458 For Respondent: No appearance.

STATEMENT OF THE ISSUES

The issue for determination is whether the Commercial Motor Vehicle Review Board's decision in this matter is proper; a determination that necessarily requires a finding of whether Respondent is liable for payment of a civil penalty for commission of the infraction of falsifying the log book of a commercial motor vehicle.

PRELIMINARY STATEMENT

Petitioner Department of Transportation (DOT) notified Respondent of the Commercial Motor Vehicle Review Board's decision to deny Respondent's request for refund of a $100 civil penalty assessed against him. Respondent was apprised of the opportunity to request formal administrative proceedings regarding the decision. Respondent requested a formal hearing.

Thereafter the matter was transferred to the Division Of Administrative Hearings on June 17, 1992, to arrange and conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, held pursuant to a duly noticed telephone conference, DOT presented the testimony of two witnesses and three exhibits. No appearance was made on behalf of Respondent and no evidence was presented on his behalf.

No transcript of the final hearing was provided by the parties. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order. Proposed findings were not timely submitted by Respondent and none had been received on his behalf at the time of the preparation of this recommended order.

FINDINGS OF FACT

1. On February 4, 1992, Jimmy R. Holton was driving on State Road (SR) 76 in a commercial vehicle bearing Vehicle Identification Number (VIN) 1F4Y05YB8LH385086. The vehicle was owned by Respondent, Herbert W. Allen d/b/a Allen Transit.

   
   

2. At 10:42 a.m., on that date the vehicle was stopped for inspection by Michael Roberts, a Motor Carrier Compliance Officer employed by Petitioner. Roberts examined the driver's log book and discovered the driver had pre-logged a future activity. The log reflected that the entry was made at the not yet existing time of 11:30 a.m.

   
   

3. The officer completed his inspection and issued a Safety Report and Field Receipt which reflected his action of assessing a civil penalty of $100 for the false entry in the log book and putting the driver out of service for eight hours. The penalty was paid at that time.

   
   

4. The vehicle was transporting automobile parts, non- hazardous material, from Jacksonville, Florida. The vehicle had left Delray Beach, Florida headed for Stuart, Florida when stopped for inspection.

   
   

5. The vehicle's travel had occurred inside the State of Florida. The driver was maintaining a log book in compliance with legal requirements of Section 316.302(2)(d), Florida Statutes (1991), because the intrastate distance for the contemplated trip exceeded a radius of 200 air miles from Jacksonville, Florida.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Any attempt by a regulatory agency to discipline a licensee places the burden of proof of the licensee's violation, through "clear and convincing evidence," upon the agency. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

8. In the context of assessment of a penalty outside a regulatory licensing scheme, decisions generally place the burden of proof upon the party asserting the affirmative of an issue. See, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

9. When an agency assesses a penalty which is challenged, the agency must assume the burden of proof of facts sustaining that assessment. The DOT, as the party asserting the affirmative of the issue of the propriety of the fine assessed in this matter, has the burden of proving by a preponderance of the evidence, facts sufficient to support the fine's imposition. See, Department of

   Transportation v. Norman B. Jones, DOAH Case No. 90-3247, Recommended Order entered September 24, 1990, adopted by Final Order entered February 4, 1991.

   
   

10. The Commercial Motor Vehicle Review Board is created pursuant to Section 316.545(7), Florida Statutes (1991), which reads in pertinent part as follows:

    
    

    (7) There is created within the Department of Transportation the Commercial Motor Vehicle Review Board, consisting of three permanent members who shall be the secretary of the Department of Transportation, the executive director of the Department of Highway Safety and Motor Vehicles, and the Commissioner of Agriculture, or their authorized representatives, which may review any penalty imposed upon any vehicle or person under the provisions of this chapter relating to weights imposed on the highways by the axles and wheels of motor vehicles, to special fuel and motor fuel tax compliance, or to violations of safety regulations.

    
    

11. Section 316.545(8), Florida Statutes (1991), authorizes the Commercial Vehicle Review Board to modify, cancel, revoke or sustain any penalty for which review is sought. In the event that the penalty is sustained and subsequently challenged in a Chapter 120 hearing, authority for final agency action adopting or rejecting recommendations of the hearing officer rests with DOT. See, final order issued in Jones, supra.

    
    

12. Section 316.302(2)(d), Florida Statutes (1991), reads as follows:

    
    

    (d) A person who operates a commercial motor vehicle solely in intrastate commerce not transporting any hazardous material within a

    200 air-mile radius of the location where the vehicle is based need not comply with 49

    C.F.R. [Code of Federal Regulations] s. 395.8, but must maintain time records prescribed in this section.

    
    

13. The provisions of 49 C.F.R. s. 395.8 (f) clearly require that time records on the vehicle must be maintained which reflect entries regarding the driver's activities which are current "to the time shown for the last change of duty status." Further, false reports in connection with such recordation of duty activities is prohibited by 49 C.F.R. s. 395.8 (e).

    
    

14. Authority for assessment of a $100 civil penalty upon discovery of noncompliance with requirements of Section 316.302(2)(b) or (c), Florida Statutes (1991); or the North American Uniform Driver Out-of-Service Criteria, is provided by Section 316.3025(3)(b), Florida Statutes (1991).

    
    

15. Contrary to assertions of Petitioner, however, Section 316.3025(3)(b), Florida Statutes (1991), makes no provision for imposition of a civil penalty for violation of requirements of Section 316.302(2)(d), Florida Statutes (1991), or 49 C.F.R. s. 395.8.

16. Section 316.302(10), Florida Statutes (1991), provides that a traffic citation may be issued for violations of that section in accordance with provisions of Section 316.650, Florida Statutes (1991), for subsequent disposition in the judicial system of the State of Florida.

    
    

17. Petitioner has not established the propriety of the civil penalty assessed against Respondent or its subsequent affirmation by the Commercial Motor Vehicle Review Board in an administrative proceeding, as opposed to issuance of a traffic citation for subsequent judicial disposition.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered rescinding the previous imposition of the $100 civil penalty administratively imposed by Petitioner.

DONE AND ENTERED this 4th day of November, 1992, in Tallahassee, Leon County, Florida.

DON W.DAVIS

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 4th day of November, 1992.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Respondent's Proposed Findings None submitted.

Petitioner's Proposed Findings 1.-2. Accepted.

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Herbert W. Allen

P.O. Box 742 Hiawassee, GA 30546

Vernon L. Whittier, Jr., Esq. Assistant General Counsel

605 Suwannee Street, M.S. 58

Tallahassee, FL 32399-0458

Thorton Williams, Esq. General Counsel

Department of Transportation Rm 562, Haydon Burns Building 605 Suwannee 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: 92-003608

Orders for Case No: 92-003608