STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1716

)

BRAD OPSAHL and JOHN G. )

OPSAHL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held on May 16, 1994. The parties, attorneys, witnesses, and court reporter attended the hearing in Ft. Myers. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Cindy S. Price

Assistant General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

For Respondents: John L. Polk

John L. Polk, P.A. Post Office Box 1221

Punta Gorda, Florida 33951-1221 PRELIMINARY STATEMENT

By Load Report Citation dated September 22, 1994, Petitioner cited Respondents for driving an overweight motor vehicle over a weight-limit bridge. By letter dated December 22, 1994, Respondents requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence five exhibits. Respondent called four witnesses and offered into evidence nine exhibits. All exhibits were admitted into evidence.

No transcript was ordered. Rulings on timely filed proposed recommended orders are in the appendix.

FINDINGS OF FACT

1. Respondent Bard Opsahl is an employee of his father's corporation, Respondent John G. Opsahl, Inc. September 22, 1994, Respondent Opsahl was driving a truck of Respondent John G. Opsahl, Inc. He had just acquired a load of dirt from a pit and had turned north on Taylor Road from Jones Loop Road.

   
   

2. On the east side of Taylor Road, immediately north of the Jones Loop Road intersection, there was a sign marked "Weight Limit." A sign beside the "Weight Limit" sign warned that a weight-limited bridge was ahead.

   
   

3. The Weight Limit sign contained profiles of three trucks and three tractor-trailer combinations. Each of the profiles displayed a number of axles. Beside four of the profiles were numbers followed by "Ts," which indicates tons.

   
   

4. The bottom profile was of a five-axle tractor-trailer. Next to it was a 22-ton limit. The next profile from the bottom was of a four-axle, cab-over- engine tractor-trailer, which bore an 18-ton weight limit. The next profile was of a three-axle tractor-trailer, which bore a 22-ton weight limit. The next profile was of a four-axle truck, which bore a 15-ton weight limit.

   
   

5. The top two profiles were of a two-axle truck and a three-axle truck. What appeared to be a piece of wide, white tape ran between the numbers and the "T's" down the entire length of the sign. Beside the top two profiles, another piece of tape obscureed the numbers, so that they could not be read.

   
   

6. Based on the Load Report Citation, Respondent Opsahl was driving a three-axle truck (i.e., without a trailer). The weight limit for this type of vehicle was one of the two that was obscured.

   
   

7. There was no Weight Limit sign at the bridge itself on the day in question.

   
   

8. Respondent Brad Opsahl drove his vehicle across the bridge on Taylor Road north of Jones Loop Road.

   
   

9. There are two facts adverse to Respondents. First, the tape on the Weight Limit sign did not appear to invalidate all weight limits, especially in view of the sign next to it warning of a "bridge weight restriction ahead." In other words, Respondent Brad Opsahl should have understood that the bridge was a weight-limited bridge.

   
   

10. Second, Respondents' truck weighed 59,800 pounds, or 30 tons, which exceeded the highest limit posted on the Weight Limit sign. Although Respondent Opsahl was a young, relatively inexperienced driver, it is inconceivable that he would think that a three-axle truck could better distribute a load than a five- axle tractor-trailer combination without a cab-over-engine. The limit for the latter vehicle, which was the highest visible limit, was 22 tons.

    
    

11. Respondents have already paid the fine of $1290 cited in the citation.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

13. Section 316.545(3)(b) provides that Petitioner shall impose a penalty of five cents per pound for each pound of weight in excess of the maximum allowable weight.

    
    

14. The fine of $1290 is an accurate computation based on the 59,800 pounds of Respondents' truck and the inferred limit of 34,000 tons, or 17 tons. But the 17-ton limit was obscured. Although Respondents cannot legitimately contend that the obscured sign eliminated all weight limits from the bridge, in all fairness, the penalty should be calculated from the highest visible limit, which is 22 tons. The adjusted penalty should therefore be $790, based on an excess weight value of 15,800 pounds. Because Respondents have already paid

$1290, Petitioner should refund $500.

RECOMMENDATION

It is hereby

RECOMMENDED that the Commercial Motor Vehicle Review Board enter a final order imposing a penalty against Respondents in the amount of $790 and refunding

$500 of the $1290 already paid by Respondents.

ENTERED on June 13, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on June 13, 1995.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-2: adopted or adopted in substance. 3: rejected as subordinate.

4-5: adopted or adopted in substance. 6: rejected as recitation of evidence. 7: rejected as irrelevant.

8: rejected as recitation of evidence.

9-13: rejected as subordinate and recitation of evidence.

Rulings on Respondent's Proposed Findings

1-6: adopted or adopted in substance. 7-8: rejected as irrelevant.

9: adopted or adopted in substance as to amount paid. The amount of the recommended refund is different.

COPIES FURNISHED:

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

605 Suwannee Street

Tallahassee, FL 32399-0458

ATTN: Eleanor F. Turner, M.S. 58

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458

Cindy S. Price

Assistant General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399

John L. Polk

John L. Polk, P.A.

P.O. Box 1221

Punta Gorda, FL 33951-1221

Commercial Motor Vehicle Review Board 1815 Thomasville Road

Tallahassee, FL 32303-5750

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: 95-001716

Orders for Case No: 95-001716