STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REINALDO GUTIERREZ, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2730

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 24, 1996, before Patricia Hart Malono, a duly designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was held via video teleconference, with the petitioner appearing in West Palm Beach, Florida, and the respondent appearing in Tallahassee, Florida.

APPEARANCES

For Petitioner: Reinaldo Gutierrez

1360 South Main Street Belle Glade, Florida 33430

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 ISSUE

The issue in this case is whether Reinaldo Gutierrez committed the violations alleged in Load Report Citation number 119441L, and, if so, the amount of the penalty which should be imposed.

PRELIMINARY STATEMENT

On January 30, 1996, the Department of Transportation, Office of Motor Carrier Compliance (Department), issued Load Report and Field Receipt number 119441L, in which the Department found that a commercial motor vehicle owned by Reinaldo Gutierrez was 8,229 pounds overweight when stopped and weighed on State Road 80 in Palm Beach County, Florida. The Department imposed an administrative fine in the amount of $411.45 based on the weight of the vehicle, and Mr.

Gutierrez paid the fine in cash on January 30, 1996.

Mr. Gutierrez timely requested an administrative hearing, and the case was referred to the Division of Administrative Hearings for assignment of a Hearing

Officer. By Notice of Video Hearing dated July 15, 1996, the final hearing in this case was scheduled for September 24, 1996.

At hearing, the Department presented the testimony of one witness, Daniel Starling, an officer with the Department's Office of Motor Carrier Compliance; Officer Starling also testified for the Department as a rebuttal witness. The Department's Exhibit A was offered and received into evidence. The respondent testified in his own behalf, but did not offer any exhibits into evidence.

A transcript was filed on October 16, 1996, and the Department timely filed a proposed 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 30, 1996, Officer Daniel Starling of the Department's Motor Carrier Compliance office, observed Reinaldo Gutierrez operating a commercial motor vehicle on State Road 80 in Palm Beach County, Florida.

   
   

3. The vehicle appeared to Officer Starling to be overweight, and he stopped the vehicle and weighed it on the portable scales issued to him by the Department. These scales are inspected and certified as accurate twice a year by the Florida Department of Agriculture. Officer Starling weighed the vehicle in accordance with the training he had received from the Department. He determined that the vehicle's total weight was 81,500 pounds.

   
   

4. Mr. Gutierrez's vehicle was a tractor/trailer combination carrying a load of sand; its length was 40 feet between its first and last axles. The maximum weight allowable by statute for this vehicle is 73,271 pounds.

   
   

5. Officer Starling calculated that Mr. Gutierrez's vehicle weighed 8,226 pounds more than the 73,271-pound statutory limit, and he issued Load Report Citation number 119441L, assessing a penalty of $.05 cents per pound of excess weight. The resulting penalty, as calculated by Officer Starling, was $411.45, and Mr. Gutierrez paid this penalty in cash on January 30, 1996.

   
   

6. Mr. Gutierrez does not dispute that his vehicle was overweight on January 30, 1996, but he contends that his vehicle was only 3,009 pounds overweight. He bases this contention on the load ticket he received on January 30, 1996, when he left the premises of GKK Corporation, the company for which he was hauling on that day. Although this load ticket showed a total weight of 76,280 pounds, Mr. Gutierrez did not produce evidence that the weight stated on the ticket was reliable. Furthermore, Mr. Gutierrez did not produce evidence that the scales used by Officer Starling were inaccurate or that the procedures he used in weighing the vehicle were improper.

   
   

7. The evidence is clear and convincing that, on January 30, 1996, Mr. Gutierrez was operating a commercial vehicle on Florida's public highways whose weight exceeded the statutory weight limit of 73,271 pounds by 8,226 pounds.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. 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 set out in Load Citation Report number 119441L occurred. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern Co., 670 So. 2d 932, 935 (Fla. 1996); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So 2d 778, 788 (Fla. 1st DCA 1981).

   
   

10. There is no dispute that the maximum allowable weight of Mr. Gutierrez's vehicle, calculated pursuant to the formula set out in section 316.535(5), Florida Statutes, is 73,271 pounds.

    
    

11. Section 316.545(3), Florida Statutes, provides in pertinent 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.

    
    

12. The evidence is clear and convincing that, when it was weighed on January 30, 1996, by Officer Starling, the weight of Mr. Gutierrez's vehicle was 81,500, thereby exceeding the maximum weight allowed by statute by 8,226 pounds. The penalty for this weight violation is $.05 per pound of excess weight, or

$411.45.

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 Reinaldo Gutierrez violated section 316.545(3), Florida Statutes, in the amount of 8,229 pounds and that Reinaldo Gutierrez is not entitled to a refund of the $411.45 penalty assessed against him.

DONE AND ENTERED this 31st day of October, 1996, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1996.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-0458

Reinaldo Gutierrez 1360 South Main Street

Belle Glade, Florida 33430

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

605 Suwannee Street

Tallahassee, Florida 32399-0450

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: 96-002730

Orders for Case No: 96-002730