STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER W. CAMPBELL, )

)

Petitioner, )

)

vs. ) Case No. 98-1637

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Tallahassee, Florida, on May 15, 1998. Respondent and its witness participated in Tallahassee. The court reporter participated by videoconference in Fort Myers, Florida.

Petitioner did not appear at either site.

APPEARANCES

For Petitioner: no appearance For Respondent: Kelly A. Bennett

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 is whether Petitioner is guilty of operating an overweight, unregistered commercial vehicle and, if so, the amount of the penalty.

PRELIMINARY STATEMENT

By Load Report Citation Number 090045M dated November 3, 1997, Respondent assessed a penalty against Petitioner for the operation of an unregistered, overweight commercial motor vehicle on County Road 951 in Collier County. By Safety Report Number 085886 dated November 3, 1997, Respondent assessed a penalty against Petitioner for failure to maintain a log book.

By letter dated March 2, 1998, Petitioner requested an administrative hearing and a refund of the $270 that he had paid in connection with the two penalties that Respondent had assessed on November 3, 1997.

At the hearing, Petitioner called one witness and offered into evidence three exhibits, which were all admitted. A videotape of the hearing constitutes the transcript.

FINDINGS OF FACT

1. On November 3, 1997, Petitioner was operating a U-Haul truck on County Road 951 in Collier County.

   Respondent's weight and safety officer pulled over the vehicle for a routine inspection.

2. Petitioner was in the moving business and was transporting a third party's household goods from Chicago, Illinois, to Naples, Florida. Petitioner produced an Ohio- apportioned registration, which had expired on May 31, 1997. However, Petitioner had no log book concerning his driving activity.

3. Respondent's weight and safety officer weighed the vehicle, which was a laden straight truck, and found that it weighed 13,400 pounds.

4. Respondent's law enforcement officer thus issued Load Report Citation Number 090045M and collected $170 for the overweight load and Safety Report Number 085886 and collected

   $100 for the failure to maintain a log book.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

6. Section 316.545 provides that Respondent shall assess a penalty of five cents per pound over 10,000 pounds against the operator of a laden straight truck being operated over Florida highways with an expired registration.

7. Respondent thus properly assessed Petitioner with a penalty of $170 for operating his vehicle with an expired registration.

8. Section 316.302(1) adopts 49 Code of Federal Regulations 395.8, which requires operators of motor carriers to maintain log books. Assuming that this federal regulation is part of the North American Uniform Driver Out-of-Service Criteria, Section 316.3025(3)(b)1 provides for a penalty of

   $100 for a violation of the log-book requirement.

9. Respondent thus properly assessed Petitioner with a penalty of $100 for failing to maintain a log book.

RECOMMENDATION

It is

RECOMMENDED that Respondent enter a final order dismissing Petitioner's request for a refund of the penalties in the amount of $270 already collected from him.

DONE AND ENTERED this 8th day of July, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 8th day of July, 1998.

COPIES FURNISHED:

Kelly A. Bennett Assistant General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Christopher W. Campbell 14751 South Homan Number 5

Midlothian, Illinois 60445

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas F. Barry, Secretary Attn: Diedre Grubbs

Haydon Burns Building, Mail Station 58 605 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-001637

Orders for Case No: 98-001637