STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WEST COAST TOWING, )

)

Petitioner, )

)

vs. ) Case No. 99-5345

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing on April 20, 2000, in Tampa, Florida.

APPEARANCES

For Petitioner: Peter Byra, pro se

West Coast Towing

124 South Berkley Road Auburndale, Florida 32823

For Respondent: Kelly A. Bennett, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

Did the Department of Transportation (Department) improperly deny a refund to Petitioner of a penalty assessed pursuant to Chapter 316, Florida Statutes?

PRELIMINARY STATEMENT

On June 7, 1999, the Department issued Safety Report Citation numbered 0862152 to Petitioner which alleged several

violations of Chapter 316, Florida Statutes, and imposed an administrative fine in the amount of $1,350.00. Petitioner did not dispute the alleged violations of Sections 316.515(1) and 316.550, Florida Statutes. The Department's Commercial Motor Vehicle Review Board at its August 12, 1999, meeting found mitigating circumstances in regard to the violation of Section 316.550, Florida Statutes, and refunded the fine previously paid by Petitioner for this violation. However, Petitioner does dispute the cited violation of Section 316.515(3), Florida Statutes, in that Petitioner disputes the classification of his vehicle as a "straight-truck." By letter dated September 22, 1999, Petitioner requested a formal administrative hearing. By letter dated December 21, 1999, this matter was referred to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of an administrative hearing.

At the hearing, Petitioner presented the testimony of Peter Byra. Petitioner's Exhibits numbered 1 through 3 were admitted in evidence. The Department presented the testimony of Clemente Igracio and Patrick Daley. The Department's Exhibit numbered 1 was admitted in evidence. Sections 316.515, 316.516, and 316.550, Florida Statutes, were officially recognized.

A Transcript of this proceeding was filed with the Division on May 11, 2000. The Department filed its Proposed Recommended

Order on May 23, 2000. Petitioner elected not to file any proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is the agency of the State of Florida charged with the responsibility of enforcing the provisions of Chapter 316, Florida Statutes.

2. On June 7, 1999, the Department's Inspector Clemente Igracio stopped Petitioner's truck for an inspection. After inspecting Petitioner's truck, Inspector Igracio issued a Safety Report Citation numbered 0862152 wherein Petitioner was cited for the alleged violations of Sections 316.515(1) and (3) and 316.550, Florida Statutes. The total fine imposed was $1,600.00 which included a fine of $1,250.00 for the alleged violation of Section 316.515(3), Florida Statutes. However, since the maximum fine imposed for a Section 316.515(3), Florida Statutes, violation is $1,000.00, the total fine imposed was $1,350.00, which Petitioner paid. Subsequently, due to mitigating circumstances, the Department refunded Petitioner the $100.00 that it had paid for the alleged violation of Section 316.550, Florida Statutes.

3. Petitioner does not protest the Section 316.515(1), Florida Statutes violation nor does it protest the Section 316.550, Florida Statutes violation.

4. Petitioner stipulated that the combined length of the truck and trailer was 65 feet, 9 inches. Petitioner also stipulated that the length of the trailer was 42 feet, 10 inches.

5. Inspector Igracio categorized the truck as a "straight- truck" because it had two axles and load-carrying capacity on the power unit.

6. The vehicle in question is a two-axle vehicle with the cargo unit and motive power unit located on the same frame so as to form a single, rigid unit.

7. The subject vehicle and trailer combination was 65 feet,

   
   

   9 inches in overall length.

   
   

8. The subject trailer was 42 feet, 10 inches in length.

   
   

9. Petitioner did not have a permit to be over the legal length.

   CONCLUSIONS OF LAW

   
   

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

11. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the

    Department must establish facts upon which its allegations are based by a preponderance of the evidence. Department of Banking and Finance, Division of Securities and Investor Protection v.

    Osborne Stern Company, 670 So. 2d 932 (Fla. 1996) and Section 120.57(1)(j), Florida Statutes.

12. Section 316.003(70), Florida Statutes, provides as follows:

    (70) STRAIGHT TRUCK. -- Any truck on which the cargo unit and the motive power unit are located on the same frame so as to form a single, rigid unit.

    
    

13. Section 316.515(3)(a), Florida Statutes, provides as follows:

    1. Straight trucks. -- No straight truck may exceed a length of 40 feet in extreme overall dimension, exclusive of safety and energy conservation devices approved by the department for use on vehicles using public roads. A straight truck may tow no more than one trailer, and such trailer may not exceed a length of 28 feet. However, such trailer limitation does not apply if the overall length of such truck-trailer combination is 65 feet or less, including the load thereon. Notwithstanding any other provisions of this section, a truck-trailer combination engaged in the transportation of boats shall not exceed the length limitations of this paragraph exclusive of the load; however, the load may extend up to an additional 6 feet beyond the rear of the trailer.

14. The Department has met its burden to show that Petitioner's vehicle was a straight truck as defined in Section 316.003(70), Florida Statutes, and as such was in violation of Section 316.315(3)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying the refund sought by Petitioner.

DONE AND ENTERED this 20th of June, 2000, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000.

COPIES FURNISHED:

Peter Byra

West Coast Towing

124 South Berkley Road Auburndale, Florida 32823

Kelly A. Bennett, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

James C. Myers, Clerk of Agency Proceedings 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, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 99-005345

Orders for Case No: 99-005345