STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IVEY & IVEY TRANSPORT, )

)

Petitioner, )

)

vs. ) Case No. 97-4517

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on December 1, 1997, with the parties to appear at Fort Lauderdale, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance For Respondent: Kelly A. Bennett

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether the Petitioner is entitled to a refund of the fine remitted for a Load Report Citation, citation number 062459M, for operating a commercial motor vehicle with an expired apportioned tag.

PRELIMINARY STATEMENT

This case began on June 16, 1997, when the Department of Transportation (Department) issued a notice to the Petitioner, Ivey & Ivey Transport, that it would not refund a fine in the amount of $1,430 which Petitioner had paid incidental to Load Report Citation number 062459M. Such notice further advised Petitioner that the basis for the denial was an alleged operation of a vehicle on an expired Illinois apportioned tag. Further, the notice advised Petitioner of a right to contest the decision.

On July 16, 1997, Petitioner requested an administrative hearing and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on September 29, 1997. Subsequent to the filing of the Response to Initial Order the matter was scheduled for a video teleconference. At such time Petitioner did not appear.

On November 25, 1997, the Respondent filed a Motion for Summary Recommended Order and Request for Hearing. Because the matter was scheduled for hearing on December 1, 1997, no ruling was entered pending the response from Petitioner which was anticipated to be made at the formal hearing. To date, Petitioner has not responded to the motion.

FINDINGS OF FACT

1. The Department is the state agency charged with the responsibility of monitoring commercial motor vehicles driven within the state. In this regard, the Department issues Load Report Citations to vehicles failing to comply with the

   requirements of Section 316.545, Florida Statutes.

   
   

2. On April 1, 1997, a vehicle driven by Depriest Ivey, Jr., was issued Load Report Citation number 062459M for operating

   within Florida with an expired Illinois apportioned tag. Based upon the weight of the vehicle, Mr. Ivey was fined $1,430.

3. Mr. Ivey contested the fine amount and claimed that he had been issued a temporary IRP prior to entering the scales in Old Town, Florida.

4. Mr. Ivey entered the weigh station at Old Town, Florida, at approximately 9:33 a.m., on April 1, 1997.

5. On March 31, 1997, the Illinois apportioned tag used on the vehicle driven by Mr. Ivey expired.

6. At the time of the stop noted above, Mr. Ivey did not possess a valid registration for the vehicle for Florida.

7. After the stop, Mr. Ivey obtained a registration for the vehicle from Landstar Ranger, Inc., via facsimile.

8. By the time Mr. Ivey was able to secure the registration for the vehicle, he had already been operating the vehicle in Florida without a valid registration.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

10. Section 316.545, Florida Statutes, provides, in pertinent part:

    (b) The officer shall inspect the license plate or registration certificate of the commercial vehicle, as defined in

    s. 316.003(66), to determine if its gross weight is in compliance with the declared gross vehicle weight. If its gross weight

    exceeds the declared weight, the penalty shall be 5 cents per pound on the difference between such weights. In those cases when the commercial vehicle, as defined in

    s. 316.003(66), is being operated over the highways of the state with an expired registration or with no registration from this or any other jurisdiction or is not registered under the applicable provisions of chapter 320, the penalty herein shall apply on the basis of 5 cents per pound on that scaled weight which exceeds 35,000 pounds on laden truck tractor-semitrailer combinations or tandem trailer truck combinations, 10,000 pounds on laden straight trucks or straight truck-trailer combinations, or 10,000 pounds on any unladen commercial motor vehicle. In the case of special mobile equipment as defined in s. 316.003(48), which qualifies for the license tax provided for in

    s. 320.08(5)(b), being operated on the

    highways of the state with an expired registration or otherwise not properly registered under the applicable provisions of chapter 320, a penalty of $75 shall apply in addition to any other penalty which may apply in accordance with this chapter. A vehicle found in violation of this section may be detained until the owner or operator produces evidence that the vehicle has been properly registered. Any costs incurred by the retention of the vehicle shall be the sole responsibility of the owner. A person who has been assessed a penalty pursuant to this paragraph for failure to have a valid vehicle registration certificate pursuant to the provisions of chapter 320 is not subject to the delinquent fee authorized in s. 320.07 if such person obtains a valid registration certificate within 10 working days after such penalty was assessed.

    (8) Any person aggrieved by the imposition of a civil penalty pursuant to this section,

    s. 316.3025, or s. 316.550 may apply to the Commercial Motor Vehicle Review Board for a modification, cancellation, or revocation of the penalty; and the review board is authorized to modify, cancel, revoke, or sustain such penalty.

11. In this case, the Department has established that the Petitioner operated a commercial vehicle in the State of Florida on an expired apportioned tag. That Petitioner later obtained a valid registration does not excuse the violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order dismissing Petitioner's request for a refund.

DONE AND ENTERED this 18th day of December, 1997, in Tallahassee, Leon County, Florida.

J. D. Parrish Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1997.

COPIES FURNISHED:

Thomas F. Barry, Secretary Attention: Ms. Diedre Grubbs Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Room 562 605 Suwannee Street

Tallahassee, Florida 32399-0450

Kelly A. Bennett, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Depriest Ivey, Jr., President Ivey & Ivey Transport

Post Office Box 772118

Coral Springs, Florida 33077

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: 97-004517

Orders for Case No: 97-004517