STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN ENGINEERING AND )

DEVELOPMENT CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0008

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 19, 1996, in Miami, Florida, before Patricia Hart Malono, a duly designated hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Benjamin Bolet

American Engineering

and Development Corporation 11765 West Okeechobee Road Hialeah Gardens, Florida 33016

For Respondent: Murray M. Wadsworth, Jr.

Assistant General Counsel Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The issue in this case is whether American Engineering and Development Corporation committed the violations alleged in Load Report and Field Receipt Number 49975L and, if so, the amount of the penalty which should be imposed.

PRELIMINARY STATEMENT

On January 31, 1995, the Department of Transportation, Office of Motor Carrier Compliance ("Department"), issued Load Report and Field Receipt Number 49975, which found that a commercial motor vehicle owned by American Engineering and Development Corporation ("American Engineering") was traveling on the state/federal highway system in violation of Overweight/Overdimension Permit Number 067249. The Department imposed an administrative fine in the amount of

$2,670.00 based on the weight of the vehicle, and American Engineering paid this fine to the Department by check on January 31, 1995.

American Engineering timely requested an administrative hearing, asserting that the weight stated by the Department in the Load Report was incorrect and requesting a refund of the administrative fine paid to the Department. This case was forwarded to the Division of Administrative Hearings on January 2, 1996, for the assignment of a hearing officer, and, by Notice of Hearing dated March 20, 1996, a final hearing was scheduled for April 19, 1996.

At the hearing, the Department presented the testimony of Joseph Borras, an officer with the Department's Office of Motor Carrier Compliance, and Donald Duncan, State Permit Engineer for the Department. The Department's Exhibits 1 through 4 were offered and received into evidence. American Engineering presented the testimony of Benjamin Bolet, its equipment manager, who also served, without objection, as its representative. American Engineering's Exhibits 1, 3, and 4 were offered and received into evidence; Exhibit 2 was offered into evidence but rejected. American Engineering was given leave to file as a late-filed exhibit documentation substantiating the origin of its Exhibit 1; this material was filed April 30, 1996.

A transcript of the hearing was filed with the Division of Administrative Hearings. The Department timely filed its Proposed Recommended Order, and American Engineering timely submitted a letter summarizing its position.

Rulings on the proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency which has the authority to enforce the statutory weight limit restrictions for vehicles traveling on the highways in the state and to impose penalties for violations of the restrictions. Sections 316.640, .535, and .545, Florida Statutes.

   
   

2. On January 31, 1995, Officer Joseph Borras, of the Department's Motor Carrier Compliance Office, observed Jose R. Sanchez operating a commercial motor vehicle on State Road 862, which is also known as Interstate 595, in Broward County, Florida. The vehicle was a tractor/trailer combination carrying a hydraulic excavator, both of which were owned by American Engineering.

   
   

3. The air-regulated axle of the vehicle was in the up-right position, causing Officer Borras to stop the vehicle.

   
   

4. At Officer Borras's request, Mr. Sanchez produced the Overweight/Overdimension Permit issued to American Engineering for "construction and industrial equipment and prefab. structural item on trucktractor semitrailer;" the permit included a permissible gross weight of 132,000 pounds. This permit, known as a blanket permit, contained conditions which, if violated, would void the permit in its entirety.

   
   

5. Permit condition number 7 required maps to be attached to the permit identifying the approved routes for the vehicle to which the permit applied. Permit condition number 8 provided that the permit was void if the required maps were not attached. 1/

6. There were no maps attached to the permit produced by Mr. Sanchez for the American Engineering vehicle, a violation of permit condition number 7. American Engineering's Overweight/Overdimension Permit was, therefore, void in its entirety.

   
   

7. Officer Borras had reason to believe that the vehicle exceeded the statutory weight limit of 80,000 pounds established in section 316.535(4) and (5), Florida Statutes (1993). He escorted the vehicle to a safe area and weighed the tractor/trailer combination, together with the hydraulic excavator which it carried, using portable scales issued to him by the Department. The scales had been inspected on January 9, 1995, by technicians of the Florida Department of Agriculture and Consumer Services and were found to be accurate. Officer Borras weighed the vehicle in accordance with the training he had received from the Department and determined the vehicle's total weight to be 133,400 pounds.

   
   

8. Based on this weight, Officer Borras determined that the vehicle weighed 53,400 pounds more than the 80,000-pound weight limit, 2/ and he issued Load Report and Field Receipt Number 49975, assessing a penalty of $.05 cents per pound of excess weight. The resulting penalty, as calculated by Officer, was $2,670.00.

   
   

9. At the time, American Engineering did not object to the weight determined by Officer Borras, and it immediately paid the penalty assessed in order to obtain the vehicle's release from the Department's custody.

   
   

10. American Engineering does not dispute that it violated the conditions of its special permit and that the entire permit was void, including the provision allowing the vehicle and its load to weigh up to 132,000 pounds. American Engineering disputes the Department's determination that the vehicle weighed 133,400 pounds. Benjamin Bolet, the equipment manager for American Engineering contends that it was impossible for the vehicle and its load to weigh 133,400 pounds. Based on the manufacturer's specifications of the operating weight of the hydraulic excavator and the known weight of the tractor/trailer combination, Mr. Bolet estimates that the vehicle, together with its load, should have weighed 116,560 pounds. Mr. Bolet supported American Engineering's position by introducing a Load Report and Field Receipt dated June 23, 1995, which he claimed involved the same or identical equipment and which showed a weight of 118,000 pounds.

    
    

11. There are numerous variables which would affect the gross weight of a tractor/trailer combination and hydraulic excavator, including the type and number of tie-downs used to attach the excavator to the trailer, the amount and type of hardware attached to the excavator, the amount of gasoline in the tractor and in the excavator, and the amount of dirt on the equipment. There is no evidence that the condition of the hydraulic excavator was the same as that of the equipment used to determine the manufacturer's specifications. There is, likewise, no evidence that the condition of the tractor/trailer combination and hydraulic excavator weighed June 23 was the same as that of the equipment which is the subject of this proceeding. And, finally, there is no evidence that the scales used by Officer Borras were inaccurate or that the procedures he used in weighing the vehicle were improper.

12. The evidence is clear and convincing that American Engineering violated the conditions of its Overweight/Overdimension Permit, that the permit was, therefore, void, and that the tractor/trailer combination and the hydraulic excavator it carried had a combined gross weight of 133,400 pounds, exceeding the statutory maximum weight of 80,000 pounds by 53,400 pounds.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Because this case involves the imposition of an administrative fine, the Department has the burden of proving by clear and convincing evidence that the violation occurred. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 21 Fla. L. Weekly S142, S143 (Fla. March 28, 1996); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981).

    
    

15. Pursuant to section 316.535(5), (6), and (7), Florida Statutes (1993), the "overall gross weight of any vehicle or combination of vehicles [traveling on Florida's public highways] may not exceed 80,000 pounds including all enforcement tolerances."

    
    

16. Section 316.545(1), Florida Statutes (1993), provides in part:

    
    

    Any weight and safety officer of the Department of Transportation having reason to believe that the weight of a vehicle and load is unlawful is authorized to require the driver to stop and submit to a weighing of the same by means of either portable or fixed scales.

    
    

17. Section 316.545(3), Florida Statutes, provides in part:

    
    

    Any person who violates the overloading provisions of this chapter shall be conclusively presumed to have damaged the highways of this state by reason of such overloading, which damage is hereby fixed as follows:

    * * *

    (b) Five cents per pound for each pound of weight in excess of the maximum herein provided when the excess weight exceeds 200 pounds.

    
    

18. The evidence is clear and convincing that the weight of American Engineering's tractor/trailer combination and the hydraulic excavator it carried exceeded the statutory maximum of 80,000 pounds by 53,400 pounds. The penalty for this weight violation is $.05 per pound of excess weight, or $2,670.00 dollars.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that American Engineering and Development Corporation violated section 316.545(3), Florida Statutes (1993), in the amount of 53,400 pounds and that

American Engineering is not entitled to a refund of the $2,670.00 penalty assessed against it.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of July 1996.

PATRICIA HART MALONO

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 3rd day of July 1996

ENDNOTES

1/ Maps identifying the approved routes for a commercial motor vehicle to which an Overweight/Overdimension Permit applies are required to be attached because some roads and bridges within the State of Florida are unsafe for travel by vehicles which are over the maximum weight or dimensions provided by statute.

2/ Because the permit was void, the permit weigh of 132,000 pounds was inapplicable.

APPENDIX

To comply with the requirements of section 120.59(2), the following rulings are made on the proposed findings of fact submitted by the parties.

The petitioner did not submit proposed findings of fact but, rather, submitted a letter summarizing its arguments.

The respondent's proposed findings of fact are adopted and incorporated in substance but not verbatim in this Recommended Order.

COPIES FURNISHED:

Mr. Benjamin Bolet American Engineering and

Development Corporation 11765 West Okeechobee Road

Hialeah Gardens, Florida 33016

Murray M. Wadsworth, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450

Ben G. Watts, Secretary Department of Transportation Attention: Diedre Grubbs

605 Suwannee Street

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

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 ten 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: 96-000008

Orders for Case No: 96-000008