STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELTA LABORATORIES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-5995

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 21, 1996, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Peter Pesola, Plant Manager

Delta Laboratories, Inc. 640 West 18th Street Hialeah, Florida 33010

For Respondent: Murray M. Wadsworth, Jr.

Assistant General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

1. Whether Petitioner violated federal placarding requirements, as alleged in Safety Report and Field Receipt 066486 (hereinafter also referred to as "Citation 066486") issued by the Department of Transportation's Office of Motor Carrier Compliance (hereinafter referred to as the "Department")?

   
   

2. If so, should the penalty assessed against Petitioner be in any way modified?

PRELIMINARY STATEMENT

By letter to the Department's Bureau of Weights and Safety dated June 2, 1995, Petitioner requested "that citation number 066486 be rescinded and all fines ($250.00) be returned to [it] for this citation." On or about September 27, 1995, the Department sent Petitioner a letter advising that the Commercial Motor Vehicle Review Board, at its September 14, 1995, meeting, had determined that Petitioner should not be granted the relief requested in its June 2, 1995, letter. By letter dated October 6, 1995, Petitioner requested a Section 120.57

hearing on its request. On December 11, 1995, the Department referred the matter to the Division of Administrative Hearings for the assignment of a hearing officer.

As noted above, the final hearing in this case was conducted on February 21, 1996. A total of three witnesses testified at the hearing: Joseph Borras, an officer with the Department assigned to its Miami field office; Ken Carr, a captain with the Department in charge of its Hazardous Materials Enforcement Section; and Peter Pesola, Petitioner's Plant Manager. In addition to the testimony of these three witnesses, a total of two exhibits (Respondent's Exhibits 1 and 2) were offered and received into evidence.

At the conclusion of the evidentiary portion of the hearing, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline (60 days following the Hearing Officer's receipt of the transcript of the hearing) for the filing of such submittals.

The Hearing Officer received the hearing transcript on March 8, 1996. On May 6, 1996, the Department filed a proposed recommended order. The Hearing Officer has carefully considered the Department's proposed recommended order. The "findings of fact" set forth in this proposed recommended order are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. On May 25, 1996, Officer Joseph Borras, an employee of the Department working out of its Miami field office, stopped a commercial vehicle operated by Petitioner for failing to stop at a railroad crossing on Northwest 58th Street in Hialeah, Florida.

   
   

2. The vehicle was carrying hazardous materials. The materials were flammable.

   
   

3. The vehicle was placarded on all sides.

   
   

4. Although the placards had the word "flammable" written on them and two of the placards, in addition, contained hazard class numbers, all four of the placards were substantially faded and, as a result, upon visual examination, their color did not fall within the color tolerances displayed on the Hazardous Materials Label and Placard Red Color Tolerance Chart. (Red placards are used, in accordance with federal regulations, to indicate that a commercial vehicle is carrying flammable materials.)

   
   

5. Officer Borras conducted an inspection of the vehicle.

   
   

6. His inspection revealed that the vehicle's placards were substantially faded.

   
   

7. Following his inspection, Officer Borras issued Safety Report and Field Receipt 066486, on which he noted that, in violation of 49 C.F.R. Section 177.823, the "placards on [the] vehicle [were] all faded and 2 [were] missing hazard class [numbers]."

8. Officer Borras assessed and collected from Petitioner a fine in the amount of $250.00 as a penalty for this violation.

   
   

9. Petitioner is now seeking a refund of these monies.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 316.302, Florida Statutes, provides that, with certain exceptions not applicable to the instant case, a commercial vehicle transporting hazardous materials on any public road, street or highway in this state is subject to the federal placarding regulations contained in 49 C.F.R. Parts 172 and 177.

    
    

11. 49 C.F.R. Section 177.823 provides, in pertinent part, that "[a] carrier may not move a transport vehicle containing a hazardous material unless the vehicle is marked and placarded in accordance with Part 172."

    
    

12. 49 C.F.R. Section 172.516(c)(6) requires that a placard on such a "transport vehicle" "[b]e maintained by the carrier in a condition so that the format, legibility, color, and visibility of the placard will not be substantially reduced due to damage, deterioration, or obscurement by dirt or other matter."

    
    

13. 49 C.F.R. Section 172.519(d)(3) requires that "[u]pon visual inspection, a color on a placard must fall within the color tolerances displayed on the appropriate Hazardous Materials Label and Placard Color Tolerance Chart."

    
    

14. Section 316.302, Florida Statutes, authorizes "[a]ny agent of the Department of Transportation described in s.316.545(9), . . . to enforce the provisions of this section."

    
    

15. Section 316.545(9), Florida Statutes, provides that "[a]ny agent of the Department of Transportation who is employed for the purpose of being a weight and safety officer and who meets the qualifications established by law for law enforcement officers shall have the same arrest powers as are granted any law enforcement officer for the purpose of enforcing the provisions of weight, load, safety, commercial motor vehicle registration, and fuel tax compliance laws."

    
    

16. Section 316.3025(3)(c)1, Florida Statutes, provides that "[a] civil penalty of $250 may be assessed for: A violation of the placarding requirements of 49 C.F.R. parts 171-179."

    
    

17. Pursuant to Section 316.3025(6), Florida Statutes, any person aggrieved by the imposition of such a penalty "may apply to the Commercial Motor Vehicle Review Board for a modification, cancellation, or revocation of the penalty. The Commercial Motor Vehicle Review Board may modify, cancel, revoke, or sustain such penalty."

    
    

18. If there are disputed issues of material fact, a formal Section 120.57 hearing must be held on the aggrieved person's application for modification, cancellation, or revocation of the penalty. See Buchheit v. Department of Business and Professional Regulation, 659 So.2d 1220, 1221 (Fla. 4th DCA 1995)("[b]ecause issues of material fact needed to be resolved, a formal hearing should have been ordered"); City of Jacksonville Beach v. Florida Public Employes Relations Commission, 371 So.2d 1045, 1047 (Fla. 1st DCA 1979)("[a]n

    evidentiary hearing is required by Section 120.57(1) where there are disputed issues of material fact").

    
    

19. At the Section 120.57 hearing, the burden is on the Department to prove by clear and convincing evidence that the applicant committed the violation for which the penalty was imposed. See Department of Banking and Finance v. Osborne Stern and Company, 21 FLW S142, 143 (Fla. March 28, 1996)("[b]ecause . . . administrative fines . . . are penal in nature and implicate significant property rights, the extension of the clear and convincing evidence standard to justify the imposition of such a fine is warranted").

    
    

20. In the instant case, on May 25, 1996, Officer Borras, an "agent of the Department of Transportation described in s.316.545(9)," Florida Statutes, cited Petitioner for a violation of 49 C.F.R. Section 177.823 and assessed and collected from Petitioner a fine in the amount of $250.00 as a penalty for this violation. Petitioner requested, pursuant to Section 316.3025(6), Florida Statutes, that the Commercial Motor Vehicle Review Board order that the citation "be rescinded and [the] fine[] ($250.00) be returned to Petitioner." The matter was thereafter referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing.

    
    

21. The evidence adduced at that hearing clearly and convincingly establishes that, when Officer Borras stopped Petitioner's vehicle on May 25, 1995, it was carrying flammable materials, but, in violation of 49 C.F.R. Section 172.519(d)(3) and, therefore, 49 C.F.R. Section 177.823 as well, its placards were substantially faded and, as a result, upon visual examination, their color did not fall within the color tolerances displayed on the Hazardous Materials Label and Placard Red Color Tolerance Chart.

    
    

22. Officer Borras, as an "agent of the Department of Transportation described in s.316.545(9)," Florida Statutes, was authorized, pursuant to Section 316.302, Florida Statutes, and Section 316.3025(3)(c)1, Florida Statutes, to assess and collect from Petitioner a $250.00 fine for having committed such a violation.

    
    

23. In view of the foregoing, Petitioner's request "that citation number 066486 be rescinded and all fines ($250.00) be returned to [it] for this citation" should be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that a final order be issued denying Petitioner's request "that citation number 066486 be rescinded and all fines ($250.00) be returned to [it] for this citation."

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of May, 1996.

STUART M. LERNER, 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 21st day of May, 1996.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-5995

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its proposed recommended order:

1-4. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted as true and incorporated in substance.

3. Rejected as a finding of fact because it is more in the nature of a statement of what occurred at hearing than a finding a fact.

4. Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.

5. Rejected as a finding of fact because it is more in the nature of a summary of, or argument concerning, testimony adduced at hearing than a finding of fact.

6. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

Peter Pesola, Plant Manager Delta Laboratories, Inc.

640 West 18th Street Hialeah, Florida 33010

Murray M. Wadsworth, Jr. Assistant General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben Watts, Secretary c/o Diedre Grubbs

Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, General Counsel

Department of Transportation Haydon Burns Building, MS 58 605 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 of time 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: 95-005995

Orders for Case No: 95-005995