STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4804

)

B & B ICE CO., INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on November 17, 1992, in Tampa, Florida.

APPEARANCES

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

Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Paul R. Benton, Jr.,

B & B Ice Company, Inc. 8710 E. Broadway Avenue Tampa, Florida 33619

STATEMENT OF THE ISSUE

Whether Petitioner properly imposed an administrative fine against the Respondent for allowing one of its vehicles to be operated in violation of a posted load limit.

PRELIMINARY STATEMENT

By letter dated July 22, 1992, Respondent, B & B Ice Company, Inc., requested a formal hearing seeking reconsideration of its requests for a refund which was initially denied by the Commercial Motor Vehicle Review Board (Board) at its June 11, 1992, meeting. Thereafter, this matter was transferred to the Division of Administrative Hearings and on September 21, 1992, it was noticed for hearing for November 17, 1992, and was heard as scheduled.

At the hearing, Petitioner presented the testimony of its employees Gary Tate, Rebecca Stalnaker, Lieutenant J.D. Morris and Respondent presented the testimony of Elyse Kennedy, executive secretary of the Board and Respondent's owner, Paul Benton, testified on his behalf.

Petitioner introduced four exhibits which were received in evidence at the hearing.

No proposed recommended orders were filed.

FINDINGS OF FACT

1. On May 2, 1992, at approximately 7:00 a.m., Petitioner, by its inspection and compliance officer, Rebecca Stalnaker, stopped the Respondent's driver, Jeffrey Leo Speak (Speak) who was operating one of Respondent's vehicles on Lumsden Road in the City of Brandon, Hillsborough County, Florida.

   
   

2. Lumsden Road in Brandon, where Respondent's vehicle was stopped, is a low load limit roadway and signs designating the roadway as such, were properly posted. The low load limit posting is relatively new in the area.

   
   

3. Petitioner began issuing traffic citations to the vehicular traffic on Lumsden Road for violating the posted load limits during 1992. Petitioner's weight and safety officers began enforcing the posted limits after receiving numerous complaints from residents in the neighboring area around Lumsden Road about non-compliance with the posted weight limits.

   
   

4. Petitioner issued a series of warnings to vehicular traffic during early 1992 for vehicles which were traversing the road weighing more than the posted load limits. Those motorists were warned that after April 30, 1992, administrative fines would be imposed against vehicles which exceeded the posted load limits.

   
   

5. Speak was unaware that Lumsden Road was a low load limit roadway and he advised Petitioners agent, Rebecca Stalnaker, of his lack of knowledge. This was so, despite the fact that agent Stalnaker followed him past one of the posted load limit signs.

   
   

6. There are alternate routes for vehicular traffic to travel in the area of Lumsden Road including a main thoroughfare one mile to the North, i.e., State Road 60.

   
   

7. The posted and legal weight limit for Lumsden Road is 5 tons (10,000 pounds).

   
   

8. Respondent's vehicle had a gross weight of 50,250 pounds or 40,250 pounds over the posted limit. As a result, agent Stalnaker imposed an administrative fine of .05 per pound for each pound that Respondent's vehicle exceeded the posted limit or $2,012.50.

   
   

9. Agent Stalnaker weighed Respondent's vehicle alongside the roadway using authorized portable scales. She followed Petitioner's usual and approved procedures for weighing vehicles.

   
   

10. During times material, the Board has considered and ruled on eleven cases similar to the instant case. Of the eleven cases, seven drivers/owners were afforded relief in the form of waiving all fines except the minimum of

    $500.00 for driving vehicles with loads that exceeded the posted limits.

    
    

11. After April 30, 1992, the Board adopted a policy indicating that no relief would be given to vehicular traffic traversing the area of Lumsden Road

    as the "window of opportunity" had passed for vehicular traffic to be informed of the low load limit designation on Lumsden Road.

    
    

12. The Board has discretion to waive, modify or cancel the imposition of administrative fines levied against vehicles for exceeding the posted load limits.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties to this action pursuant to Subsection 120.57(1), Florida Statutes.

    
    

14. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

15. The authority of the Petitioner is derived from Chapter 316, Florida Statutes.

    
    

16. Petitioner is authorized to impose an administrative fine against vehicles in the amount of .05 per pound for each pound of weight in excess of the maximum posted limit. Here, Respondent's vehicle was 40, 250 pounds overweight and Petitioner's agent properly assessed the allowable fine of .05 per pound for each pound in excess of the 10,000 pound maximum allowable weight.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,006.25. 1/

DONE and ENTERED this 13th day of January, 1993, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 13th day of January, 1993.

ENDNOTE

1/ This administrative fine appears to be more in keeping with Respondents policy of alerting vehicular traffic to the low load limit designation of Lumsden Road in the area of Brandon, Florida. Consideration was given to

Respondent's drivers expressed unawareness of the low load limit designation although there were posted signs advising of the designation. Consideration was also given the fact that the load weight infractions and the posting of signs in the Lumsden Road area is relatively new.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Paul R. Benton, Jr.

B & B Ice Co., Inc.

8710 E. Broadway Avenue Tampa, Florida 33619

Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

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

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 contact 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: 92-004804

Orders for Case No: 92-004804