STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

H. B. WALKER, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-4371RU

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4951

)

H. B. WALKER, INC., )

)

Respondent. )

)

RECOMMENDED ORDER (CASE NO. 95-4951)

Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled consolidated cases on July 17, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Thomas V. Infantino, Esquire

INFANTINO AND BERMAN

180 South Knowles Avenue, Suite 7 Post Office Drawer 30

Winter Park, Florida 32790

For Respondent: Paul Sexton

Chief, Administrative Law Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

These cases result from separate petitions alleging the invalidity of certain Department of Transportation rules and policies, and challenging an administrative fine imposed after a terminal audit of H. B. Walker, Inc.'s (Walker) facility conducted by the Department of Transportation. This Recommended Order addresses only the latter petition and these issues: whether

the violations alleged in a Safety Report and Field Receipt issued on August 1, 1995 occurred and, if so, what penalties are appropriate.

PRELIMINARY STATEMENT

In response to a terminal audit, assessment of a $4,000 fine and subsequent impoundment of Walker's vehicle by the Department of Transportation (DOT), Walker filed a petition with the Division of Administrative Hearings (DOAH) on September 1, 1995, pursuant to Sections 120.535, 120.56 and 120.57, Florida Statutes, challenging certain DOT rules.

On September 25, 1995, Walker filed with the DOT a request for formal hearing, pursuant to Section 120.57(1), Florida Statutes, in response to a written decision of the Commercial Motor Vehicle Review Board upholding the findings of record-keeping violations and the $4,000 civil penalty.

After the latter petition was forwarded to DOAH, and at the request of the parties, both cases were consolidated for consideration in a single evidentiary hearing. By necessity, two orders: one recommended, one final, are being issued.

At the commencement of the hearing, after argument by counsel, the Administrative Law Judge granted Walker's Motion to Realign Parties in Case No. 95-4951. In so ruling, the Judge determined that DOT has the burden of proving that the alleged violations occurred and that the proposed penalty is appropriate.

The following witnesses were presented by DOT at hearing: Officer Terron

R. Lindsey, Captain E. A. Brown, Lieutenant Colonel Robert W. Ball, and Elyse Kennedy. Fifteen (15) exhibits, marked DOT or Petitioner's Exhibit Nos. 1-15, were received into evidence, including Exhibit No. 9, a deposition of Joseph Warren.

Herb Walker testified on behalf of Walker. Respondent Walker's Exhibit Noumbers 1-11 were received into evidence, including Exhibit Nos. 8, 9 and 10, which are depositions of E. A. Brown, Luis Phelps and Terron Lindsey. A deposition of John Valois was marked and received into evidence as "Joint Exhibit No. 1".

At the request of the parties and as reflected on the record, the Administrative Law Judge took official recognition of a series of federal and state regulations. These include the federal regulations (1993 and 1994 versions of 49 CFR, Parts 390, 391 and 396) filed on October 7, 1996.

A transcript was prepared and was filed on September 6, 1996. Thereafter, the parties filed Proposed Final Orders and Proposed Recommended Orders, according to a schedule agreed upon by the parties and extended to October 18, 1996, with the consent of the Administrative Law Judge.

FINDINGS OF FACT

1. Walker is a Florida corporation, with its principal office in Orlando, Florida. Designated a "minority business enterprise" for purposes of certain governmental contracts, the company is engaged in the business of demolition and transportation. Herb Walker is president and owner; he took over the operation of the business in 1988 or 1989 from his father, who had operated the business for approximately 20-25 years.

2. At the relevant time, April through September of 1995, Walker owned approximately 13 vehicles: five trucks, four tractors and four trailers. Walker employed or leased approximately eight drivers, one of whom (Joe Warren) also served as a mechanic. The lease arrangement is for the convenience of the company for payroll and insurance purposes but does not relieve the company of compliance with certain record-keeping requirements.

   
   

3. Terron R. Lindsey (Officer Lindsey) is a Motor Carrier Compliance Officer with DOT. In that capacity, he enforces state and federal laws and regulations governing commercial carrier safety through roadside inspections and terminal audits (also called safety compliance reviews).

   
   

4. In March of 1995, Officer Lindsey and some other DOT staff were conducting an enforcement survey at Interstate 4 and U. S. 192, near Kissimmee. In the process, they pulled over approximately four Walker vehicles around 8:00

   a.m. on March 15, 1995. There were problems with each vehicle: over-height, over-weight, and brakes out of adjustment. John Valois was one of the drivers. He did not have a required medical examination in his vehicle. Because of these roadside violations, and at the suggestion of John Valois, Officer Lindsey determined that he should conduct a terminal audit of Walker's facility.

   
   

5. The Walker facility is a trailer, with Herb Walker's office at one end, an administrative office in the middle, and a waiting room or reception area at the other end. Officer Lindsey, unannounced, appeared at the facility on April 18, 1995 and found Inez Walker, Herb Walker's mother, in the office.

   
   

6. Ms. Walker called John Valois on the radio and established telephone contact between him and Officer Lindsey. Herb Walker came in, but spoke only briefly to Officer Lindsey, and said that John Valois was in charge of the drivers and vehicles. John Valois confirmed by telephone that Walker had eight drivers, and Ms. Walker gave Officer Lindsey driver files for the following: Bob Beck, John Valois, Joe Warren, Duane Cross, Mike Walker, Calvin Bryant, Steve Tillman and James Thompson.

   
   

7. Not one of the drivers' files was complete. All were missing essential documents, including a controlled substance test. Most of the files lacked the physical examination report and other required reports and documentation.

   
   

8. Officer Lindsey also inquired about maintenance files on vehicles owned by the company. These were not produced because Mr. Valois explained that the files were kept at Parkway Trucks, the company which services the Walker vehicles. Officer Lindsey explained that the files needed to be available where the vehicles are kept, at the terminal.

   
   

9. After completing his safety compliance review, Officer Lindsey told Inez Walker that he would waive the fines for any deficiencies as long as the company came into compliance by a follow-up visit in 60 to 90 days. He gave a copy of his survey checklist to Ms. Walker.

   
   

10. Officer Lindsey returned to Walker's facility on July 12, 1995. Herb Walker told him that the drivers' files were all at the physician's office, where the drivers had their medical examinations. Officer Lindsey responded that he would return the next morning and that the files needed to be available then.

11. On July 13, 1995, Officer Lindsey met John Valois at the Walker office. Mr. Valois confided that most of the deficiencies still existed, that he did not have time to do all of the paperwork, but that he could get the files current with another week's grace period. Officer Lindsey denied the extension request and examined the files.

    
    

12. The vehicle maintenance forms were still not available and the drivers' files were still not complete. Controlled substance test results were available on five drivers, one of whom had failed the test and was still working. At Officer Lindsey's direction, that employee was removed. Physical examinations had been performed for four drivers.

    
    

13. Officer Lindsey completed his second review and he told John Valois that penalties would be assessed after Officer Lindsey conferred with his supervisor.

    
    

14. Together with Captain Ernest A. Brown, Officer Lindsey developed the following penalties for the Walker violations:

    
    

    Incomplete Driver Files $ 800 (eight drivers at $100 each)

    No Driver Medical Examinations $ 400 (four drivers at $100 each)

    Subpart H (No controlled substance $1,500 test) (six drivers at $250 each)

    No Maintenance Files $1,300

    (13 vehicles at $100 each) $4,000

    
    

    Petitioner's Exhibit No. 10)

    
    

    In assessing these penalties, Captain Brown and Officer Lindsey considered the fact that Walker is a small business. No fines were imposed as to records for out-of-service vehicles; and instead of penalizing each separate file violation, they assessed $100 for each of eight incomplete driver files. Since two drivers were no longer employed, out of the eight identified on April 18, 1995, the $250 fine for missing controlled substance tests was applied for six employees only. Officer Lindsey's rationale for assessment of the controlled substance test penalty was inconsistent as he had explained to Ms. Walker that violations corrected by his next visit would not be penalized. At hearing, he explained that he did not have the authority to waive the penalty for missing drug tests. Although the rules permitted a maximum aggregate amount of $5,000 in penalties assessed in one terminal audit, the aggregate amount in this case was $4,000.

    
    

15. On August 1, 1995, Officer Lindsey returned to the Walker office and delivered to Walker's General Manager, Roy Francis, the notice of violations and penalties. The notice of violations and penalties include procedures for protest to the Commercial Motor Vehicle Review Board, including the provisions that the penalty had to be paid in order for a protest to be placed on the Review Board agenda.

    
    

16. Roy Francis indicated that the company would protest the audit and penalties but did not pay the penalties on August 1, 1995. Herb Walker was also present on August 1, 1995 and was aware of the penalties.

    
    

17. Terminal audits were made part of DOT's safety compliance program around 1990. At first, the audits were conducted as a courtesy education and information exercise. In 1993, with the promulgation of statutory authority and

    administrative rules, the agency began assessing penalties for violations found in the audits. By 1995, when the Walker audit was conducted, the agency still had very little experience with penalty collection in terminal audit cases.

    Walker was the first case in which the carrier refused to pay the penalty while the protest was pending.

    
    

18. By the end of August of 1995, when Walker had still not paid the

    $4,000 assessed by Officer Lindsey, Captain Brown, after consultation with legal and other state-level department staff, authorized collection enforcement as described in Chapter 18 of the Motor Carrier Compliance Manual.

    
    

19. On August 28, 1995, a field officer of DOT impounded a Walker vehicle found at County Road 472 and State Road 400. The vehicle was taken to the DOT yard in Deland, Florida, where it remained, in lieu of payment of the penalties.

    
    

20. Herb Walker was initially told that he had to pay the penalties before his protest would be heard. Later, Elise Kennedy, Executive Secretary for the Commercial Motor Vehicle Review Board, informed him that his protest would be heard by the Board on September 14, 1995.

    
    

21. Herb Walker did not appear before the Review Board in person or through counsel. The Board considered his written protest and the testimony of Officer Lindsey and denied the protest.

    
    

22. Herb Walker admits that some of the deficiencies found by Officer Lindsey in April of 1995 existed at that time. He also admits that some deficiencies still existed in July of 1995, at the time of the return visit. However, he contends that he should have been given more time to come to full compliance, that he expended thousands of dollars to achieve compliance, and that in lieu of a fine or penalty, he should be permitted to put the funds into upgrading his safety program.

    
    

23. Walker is one of only a few cases involving assessment of penalties as the result of a terminal audit. It is the first, and only case, where the penalty was not paid and a vehicle was impounded.

    
    

24. The enforcement officer has some discretion in granting compliance deadline extensions. Officer Lindsey and his superior, Captain Brown, considered the "attitude of non-compliance" evinced by Walker when they assessed the penalty in this case. Sometimes it requires the actual assessment of a penalty before that attitude is changed. In spite of Walker's assertions that he now has an effective safety compliance program, there were two egregious roadside violation incidents in November of 1995 and another more recent incident shortly before the hearing. In one of the November incidents, a driver was found driving a vehicle that earlier in the afternoon had been placed "out of service" by the DOT inspection officer as the result of defective brakes and other equipment.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

26. Section 316.302(1), Florida Statutes (1994), requires that all drivers and owners of commercial motor vehicles that are operated on the public highways of Florida comply with federal regulations, which include 49 CFR, Parts 390-397, as such existed on March 1, 1994. 1/

27. Section 316.302(5), Florida Statutes (1994), provides authority for DOT to adopt and revise rules to assure the safe operation of commercial motor vehicles. The same section also authorizes DOT personnel to conduct motor carrier terminal audits to determine compliance with 49 CFR, Parts 171, 172, 173, 177, 178, 391, 393, 396 and 397.

    
    

28. Subsection 316.3025(3)(e), Florida Statutes (1995) 2/ , provides that a civil penalty not to exceed $5,000 in the aggregate may be assessed for violations found in the conduct of terminal audits, pursuant to Section 316.302(5), Florida Statutes.

    
    

29. In order to impose its civil penalty, DOT must prove by clear and convincing evidence that the alleged violations occurred. Department of Banking and Finance v. Osborne Stern, 670 So.2d 932 (Fla. 1996).

    
    

30. These are the violations which have been alleged:

    
    

    49 CFR, Part 391.51 ("incomplete driver files")

    49 CFR, Part 391.43 ("no driver medical examinations")

    49 CFR, Part 391.103 ("Subpart H - no controlled substance test")

    49 CFR, Part 396.3 ("no maintenance files")

    
    

31. The relevant version of the Code of Federal Regulations, adopted by reference in Section 316.302(1), Florida Statutes (1994), is the October 1, 1993 edition, as amended in November 1993 (effective December 8, 1993). 3/

    
    

32. 49 CFR, Part 391.1, establishes the scope of the regulations:

    
    

    Section 391.1 Scope of the rules in this part; additional qualifications; duties of carrier-drivers.

    1. The rules in this part establish minimum qualifications for persons who drive motor vehicles as, for, or on behalf of motor carriers. The rules in this part also establish minimum duties of motor carriers with respect to the qualifications of their drivers.

    2. A motor carrier who employs himself as a driver must comply with both the rules in this part that apply to motor carriers and the rules in this part that apply to drivers.

       
       

       The regulations do not distinguish between drivers who are employed directly by a motor carrier and those who are supplied to a carrier by a contract agency.

       
       

33. 49 CFR, Part 391.43, describes the medical examination required for drivers and provides that the medical examiner shall complete a certificate in a prescribed form and furnish one copy to the person who was examined and one copy to the motor carrier. According to the history note in the Code of Federal Regulations, the requirement for a certificate of physical qualification has been in effect since 1970, a period which covers all of Walker's drivers.

    According to 49 CFR, Part 391.45, the persons who must be medically examined and certified in accordance with Part 391.43 include persons who have not been examined and certified and drivers who have not been examined and certified within the preceding 24 months.

    
    

34. 49 CFR, Part 391.51, requires that a motor carrier maintain a driver qualification file for each driver it employs. The driver qualification file may be combined with the driver's personnel file. Part 391.51 also dictates the contents of the driver's qualification file, which for drivers employed prior to 1971, must include:

    
    

    1. the medical certificate;

    2. the waiver of physical disqualifi- cation, if issued;

    3. the note relating to annual review of driving record;

    4. a list or certificate relating to violations of motor vehicle laws and ordinances; and

    5. any other matter relating to the driver's qualifications or ability to drive a motor vehicle safely.

       
       

       For drivers employed after January 1, 1971, the file must include:

       
       

       1. all of the above;

       2. the application for employment;

       3. responses to inquiries concerning the driver's prior driving record and employment;

       4. the certificate of the driver's road test or equivalent; and

       5. the certificate of written examination or equivalent certificate.

       
       

35. 49 CFR, Part 391.103, provides that a motor carrier shall require a pre-employment controlled substance test from an applicant driver or the motor carrier shall obtain information from a testing program in which the driver already participates or has participated. The information required by this part must be maintained in the driver's qualification file.

    
    

36. 49 CFR, Part 396.3, requires that motor carriers maintain or cause to be maintained these records for each vehicle:

    
    

    1. An identification of the vehicle including company number, if so marked, make, serial number, year, and tire size.

       In addition, if the motor vehicle is not owned by the motor carrier, the record shall identify the name of the person furnishing the vehicle;

    2. A means to indicate the nature and due date of the various inspection and maintenance operations to be performed;

    3. A record of inspection, repairs, and maintenance indicating their date and nature;

    4. A lubrication record; and

    5. A record of tests conducted on pushout

    windows, emergency doors, and emergency door marking lights on buses.

    
    

    Part 396.3 also provides:

    
    

    (c) Record retention. The records required by this section [shall be retained where the vehicle is either housed or maintained for a period of 1 year] and for

    6 months after the motor vehicle leaves the motor carrier's control.

    [emphasis added]

    
    

37. The department met its burden of proof on some, but not all of the alleged violations. The record plainly establishes that driver qualification records were incomplete for all drivers on the initial and follow-up visits by Officer Lindsey; similarly, medical examinations were not available for four of the eight drivers.

    
    

38. The record, however, is unclear as to compliance with the controlled substance test requirements. If the department had a policy of waiving some but not all first-time violations, that policy was not reflected in any rule, state or federal, existing at the time of the violation. 4/ The policy was not clearly articulated or explained and Officer Lindsey's statements to Inez Walker were inconsistent. It is, moreover, impossible to establish from the record which drivers were subject to the pre-employment testing requirement and which drivers, as of the second visit, still lacked the tests.

    
    

39. The policy, and the record, as to maintenance of vehicle records, also fall short of the "clear and convincing" standard. The federal rule appears to permit retention of vehicle records where the vehicle is maintained. Officer Lindsay gave ample notice to Walker to bring the records to Walker's office, and failure to comply with that request leads to a suspicion that the records were not properly compiled, or retained, anywhere. An employee of Walker confided as much. However, the assessment of a civil penalty requires more than a suspicion. Officer Lindsey admitted that he did not seek the records at Parkway, where the vehicles were maintained and, for that reason, non-compliance with part 396.3 was not proven. A penal statute or rule must be strictly interpreted against the authorization of discipline and in favor of the person sought to be penalized. Fleishman v. Department of Professional Regulation, 441 So.2d 1121 (Fla 3rd DCA 1983)

    
    

40. Rule 14-108.005, Florida Administrative Code, establishes a civil penalty of $100 for each violation of Title 49, parts 391 (except sub-part H) and 396. The $800 penalty proposed for eight violations of part 391.51, and the

$400 penalty proposed for four violations of part 391.43 are appropriate. Although Walker suggested that the penalties should be waived because of his substantial compliance since the July 1995 terminal audit, that claim was belied by evidence of continuing incidents of safety violations by his company.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter its final order

finding H. B. Walker, Inc. guilty of violating 49 CFR, parts 391.43 and 391.51, and assessing a civil penalty of $1200.

DONE AND ENTERED this 4th day of November, 1996, in Tallahassee, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996.

ENDNOTES

1/ Chapter 95-247, section 1, Laws of Florida, amended section 316.302 and updated CFR regulations to the March 1, 1995 version. However, Chapter 95-247 became effective October 1, 1995, several months after the material events in this case.

2/ This provision was not amended in 1994 or 1995.

3/ The rules were also amended in February of 1994, but the effective date is January 1, 1995.

4/ The Department of Transportation has during the pendency of this proceeding, published notice of rule amendment to remedy this problem. See, proposed amendments to rule 14-108.003. (Volume 22 number 23, Florida Administrative Weekly, June 7, 1996.) The changes took effect 9/17/96 according to the rule's history note.

COPIES FURNISHED:

Thomas V. Infantino, Esquire INFANTINO AND BERMAN

180 South Knowles Avenue, Suite 7 Post Office Drawer 30

Winter Park, Florida 32790

Paul Sexton, Chief Administrative Law Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transportation

Attention: Diedre Grubbs, Mail Station 58 Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 95-004951

Orders for Case No: 95-004951