STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TREE TRIMMING & REMOVAL, INC., )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

Case No. 04-0301

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 6, 2004, in Sarasota, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Glen Wayne Shelton, President

Laura R. Chamberlain, Vice President Tree Trimming & Removal, Inc.

3808 Wilkinson Road

Sarasota, Florida 34233

For Respondent: J. Ann Cowles, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

Whether Respondent properly fined Petitioner the sum of

$115.00 for the reasons set forth in Commercial Motor Vehicle

Citation No. 1026031, issued July 28, 2003, as modified by the Commercial Motor Vehicle Review Board on November 6, 2003.

PRELIMINARY STATEMENT

On July 28, 2003, Officer John Brenner of the Department of Transportation (the "Department") issued Commercial Motor Vehicle Citation No. 1026031 to Brian Michael McCarren, who was driving a vehicle owned by Tree Trimming & Removal, Inc. ("Tree Trimming"). The citation alleged that Mr. McCarren was driving an overweight motor vehicle and that he was operating the vehicle without the proper class of driver's license, as required by Subsection 322.54(2)(c), Florida Statutes (2003).

Tree Trimming, as the motor carrier of record, was assessed a

$20.00 penalty for the overweight vehicle and a $100.00 penalty for allowing its driver to operate with an improper license.

Pursuant to the opportunity set forth in Subsection 316.545(8), Florida Statutes (2003), Tree Trimming contested the citation before the Commercial Motor Vehicle Review Board (the "Board") in a meeting held on November 6, 2003. On November 14, 2003, the Board announced the intended disposition of the case by refunding $5.00 of the $20.00 penalty for operating an overweight vehicle and denying any refund of the $100.00 penalty for operating with an improper license. On December 9, 2003, Tree Trimming, through its vice-president, Laura Chamberlain, requested a formal hearing to contest the imposition of the

civil penalty that had been upheld through the preliminary determination made by the Board.

At the formal hearing, the parties stipulated to the authenticity of: Commercial Motor Vehicle Citation No. 1026031; Driver Vehicle Examination Report No. FL0722000308, dated

July 28, 2003; 1800A Brush Chipper Maintenance specifications; and Tree Trimming's check no. 2794, made payable to the Department in the amount of $120.00. Driver Vehicle Examination Report No. FL0722000308 was admitted as Joint Exhibit 1. The Department presented the testimony of Officer Brenner and Lieutenant Robert Richards, both of the Department's Office of Motor Carrier Compliance. The Department's Exhibits 1, 2, 5 through 7, and 9 were admitted into evidence. Tree Trimming presented the testimony of Laura Chamberlain. Tree Trimming's Exhibit 1 was admitted into evidence.

No transcript of the proceedings was ordered. The Department timely filed a Proposed Recommended Order on April 16, 2004. Tree Trimming filed a Proposed Recommended Order on April 27, 2003, along with a motion to accept the proposed recommended order out of time. In the motion,

Ms. Chamberlain explained that she misunderstood the time limit and believed she had 30 days in which to submit a proposed recommended order. On April 27, 2004, the Department submitted a response in opposition to Tree Trimming's motion. The

undersigned is aware that laypersons may have difficulty in understanding the deadlines set forth in statutes and rules. However, at the conclusion of the hearing in this matter, the undersigned explained, in detail, the schedule for submitting proposed recommended orders. The motion to accept Tree Trimming's proposed recommended order out of time is DENIED.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department was the state agency responsible for enforcing the statutes involving commercial carrier vehicle weights on covered vehicles operated on the streets and highways of this state. It does so through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to conduct random safety and compliance inspections of commercial vehicles being operated in this state.

2. Tree Trimming is the owner of a "straight truck," i.e., a two-axle truck on which the cargo unit and the motor power unit are located on the same frame so as to form a single, rigid unit. See § 316.003(70), Fla. Stat. (2003). The truck carries Vehicle Identification No. ("VIN") 2FZAAJCP11AG86965 and Florida license no. D28CYX. The declared gross vehicle weight of the truck is 25,900 pounds, making that the maximum weight the truck can carry under its license. Tree Trimming also owns a wood chipper that rides on a single-axle trailer with VIN 60142267.

   The manufacturer's weight rating for the trailer is 7,040 pounds.

3. On July 28, 2003, Officer John Brenner stopped Tree Trimming's truck and trailer, which was driven by Mr. McCarren, an employee of Tree Trimming. Officer Brenner requested

   Mr. McCarren to produce his driver's license and the vehicle registration for the truck. He performed an inspection of the truck and trailer, noting several minor safety violations, which are not relevant here.

4. Officer Brenner then weighed the truck and trailer at the scene utilizing a set of certified, recently calibrated, Department-owned scales, using the standard weight procedures. He weighed them without detaching the trailer from the truck. Officer Brenner first placed the scales under each tire of the truck. The front axle of the truck weighed 8,000 pounds. The rear axle of the truck weighed 11,300 pounds. Officer Brenner next placed the scales under the tires of the trailer. The single axle of the trailer weighed 7,300 pounds. The total weight of the truck and trailer was 26,300 pounds. When the 25,900 pound maximum legal weight was subtracted from the actual weight, Tree Trimming's truck was seen to be 400 pounds overweight. That excess, taxed at five cents per pound, resulted in a civil penalty of $20.00.

5. Officer Brenner noted that Mr. McCarren carried a Class D Florida driver's license. A Class D driver's license authorizes its holder to drive a truck with a weight of 8,000 pounds or more, but less than 26,001 pounds. To drive a motor vehicle combination weighing more than 26,001 pounds, a driver must possess a valid Class A, B, or C driver's license. See

   § 322.54(2)(c) and (d), Fla. Stat. (2003). Officer Brenner cited Tree Trimming for allowing its driver to operate a vehicle outside of his class and assessed Tree Trimming a civil penalty of $100.00.

6. Tree Trimming contended that Officer Brenner should have disconnected the truck and trailer before weighing them. Tree Trimming argued that weighing the truck and trailer without disconnecting them resulted in the connecting tongue of the trailer being weighed twice. This contention is rejected. The tongue of the trailer resting on the back of the truck would naturally increase the measured weight of the truck, but would also decrease the measured weight of the trailer by a corresponding amount. There is no basis to find that the weight of the tongue would have registered twice on the scales.

7. Tree Trimming also contended that Officer Brenner was either incompetent or overly eager to find violations. As to the incompetence allegation, no evidence was offered that Officer Brenner was unqualified to weigh Tree Trimming's

   vehicles. Officer Brenner is a certified law enforcement officer and has received 104 hours of training in weight, registration, permits, and over-dimensional aspects of commercial vehicles. He has completed 328 hours of training specifically related to his duties with the Office of Motor Carrier Compliance, including the roadside weighing of vehicles.

8. As to the allegation of over-eagerness, Tree Trimming pointed to statistics showing that in 2003, Officer Brenner weighed 170 vehicles and issued citations to 158 of them, a citation rate of 93 percent. The Department's statewide statistics for 2003 indicated that 30,711 vehicles were weighed and 14,844 citations were issued, a citation rate of 48 percent. The disparity between Officer Brenner's citation rate and the statewide citation rate was said by Tree Trimming to establish that Officer Brenner is determined to issue citations to every vehicle he stops.

9. The evidence established that none of Officer Brenner's 158-weight citations in 2003 were challenged, except for the one at issue in this proceeding. In any event, the cited statistics do not demonstrate that Officer Brenner did anything wrong in issuing this or any other citation.

10. After issuing the citation, Officer Brenner allowed Mr. McCarren to disconnect the trailer from the truck and to drive the truck away. Officer Brenner explained that once the

    trailer was detached, the truck was under the weight limit and Mr. McCarren could legally drive it.

11. Tree Trimming immediately drove the truck to a local dumping/recycling facility and had it weighed, once with its full load and again after the load was dumped. The scales at the dump indicated the loaded truck weighed 18,020 pounds, whereas Officer Brenner's weighing showed the truck weighed 19,200 pounds. Tree Trimming contends that this disparity proves that Officer Brenner's weighing was incorrect and that the truck was under the maximum weight.

12. Tree Trimming did not offer evidence as to the accuracy or calibration of the scales at the dump or any verification that the load was not lightened on the way to the dump. Officer Brenner testified that the load of wood chips was falling out of the back of the truck at the time he weighed it. When the truck was weighed at the dump, it was not connected to the trailer. As indicated above, the truck was supporting some of the trailer's weight when Officer Brenner weighed it. Taking all of the evidence into account, Tree Trimming's weighing of the truck at the dumping facility is insufficient to establish that Officer Brenner's weighing of the truck and trailer at the roadside stop was inaccurate.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings, except as indicated below. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

14. By the provisions of Section 316.545, Florida Statutes (2003), the Department of Transportation is granted the authority to enforce the provisions of the laws of this state regarding weight, load, safety, registration, and fuel tax consumption of commercial carriers operating on the streets and highways of Florida and to levy penalties for the violation of those laws.

15. Subsection (2)(b) of that statute provides, in relevant part:

    The officer shall inspect the license plate or registration certificate of the commercial vehicle . . . 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.

    
    

16. Subsection 320.01(12), Florida Statutes (2003), places upon the owner or person applying for vehicle registration the burden to declare the maximum gross weight of the vehicle being registered.

17. Here, the owner of the truck declared 25,900 pounds as the gross vehicle weight of the truck at the time it was recorded for the year in issue. A declared weight of less than 26,000 pounds provides certain advantages to the vehicle owner, including: lower permitting fees, exemption from certain display and safety equipment requirements, exemption from the requirements of a driver's medical certificate, and exemption from the requirement that the driver pass an operating test, as well as a written examination. See, e.g., § 320.08(4), Fla. Stat. (2003) (license fees); § 316.252(1), Fla. Stat. (2003) (splash and spray protective devices); § 316.302(2)(e) and (f), Fla. Stat. (2003) (display of owners' name and base of operations; exemption from certain provisions of 49 C.F.R. (relating to federal safety regulations); § 320.0706, Fla. Stat. (2003) (display of license plates); and § 322.57(2), Fla. Stat. (2003) (examination).

18. When the declared weight was subtracted from the gross vehicle weight, as measured by the Department's scales applied by Officer Brenner, the excess was 400 pounds. Applying the statutory figure of five cents per pound to that figure resulted in the penalty of $20.00. It appears the procedure was properly followed and that the Board properly exercised its discretion in reducing this penalty to $15.00.

19. Tree Trimming raised a question as to the accuracy of the Department's portable scales used in this weighing. Documentation submitted by the Department indicated they had been recently calibrated for accuracy. No evidence was presented to show they were inaccurate. That the dump scales reflected a different weight is immaterial, because no evidence was presented as to the accuracy of that scale. In summary, the evidence satisfies the Department's burden to show, by a preponderance of the evidence, that Tree Trimming's vehicle was overweight at the time it was being operated on the state roads and that the penalty was appropriate.

20. Because the overweight penalty was appropriate, Tree Trimming's driver was also out of compliance with Subsection 322.54(2)(c), Florida Statutes (2003), which provides, in relevant part:

    (2) The [Department of Highway Safety and Motor Vehicles] shall issue, pursuant to the requirements of this chapter, drivers' licenses in accordance with the following classifications:

    
    

    * * *

    
    

    (c) Any person, except a person who possesses a valid Class A or a valid Class B driver's license, who drives a motor vehicle combination having a gross vehicle weight rating, a declared weight, or an actual weight, whichever is greatest, of 26,001 pounds or more must possess a valid Class C driver's license. . . .

21. The Department provided this tribunal with no statutory or rule citation authorizing it to impose an administrative penalty on the owner of a vehicle driven by improperly licensed person. Subsection 322.54(4)(a), Florida Statutes (2003), provides that a person who operates a commercial motor vehicle without a valid license is guilty of a misdemeanor of the first degree. It makes no provision for an administrative penalty. As to the owner of the vehicle, Section 322.36, Florida Statutes (2003), provides:

    No person shall authorize or knowingly permit a motor vehicle owned by him or her or under his or her dominion or control to be operated upon any highway or public street except by persons duly authorized to operate motor vehicles under the provisions of this chapter. Any person violating this provision is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

    
    

    This statute imposes a criminal penalty, not an administrative fine. Chapter 318, Florida Statutes (2003), deals generally with the disposition of traffic infractions and makes no provision for administrative fines.

22. Subsection 316.545(7), Florida Statutes (2003), authorizes the Board to review "any penalty imposed upon any vehicle or person under the provisions of this chapter relating to weights imposed on the highways by the axles and wheels of motor vehicles, to special fuel and motor fuel tax compliance,

    or to violations of safety regulations." (Emphasis added.) The quoted language does not clearly authorize the Board to review penalties imposed pursuant to Chapter 322, Florida Statutes (2003).

23. The undersigned has no alternative but to conclude that the $100.00 penalty against Tree Trimming for allowing its driver to operate a vehicle outside of his class cannot be enforced in this tribunal, absent some statutory authority for the imposition of an administrative fine. An administrative agency is a creature of statute and can only do what it is authorized to do by the Legislature. Ocampo v. Department of Health, 806 So. 2d 633, 634 (Fla. 1st DCA 2002); Department of Insurance and Treasurer v. Bankers Insurance Company, 694 So. 2d 70, 71 (Fla. 1st DCA 1997).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a final order be entered imposing an administrative fine of $15.00 on Tree Trimming & Removal, Inc.

DONE AND ENTERED this 13th day of May, 2004, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2004.

COPIES FURNISHED:

J. Ann Cowles, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Glen Wayne Shelton, President

Laura R. Chamberlain, Vice President Tree Trimming & Removal, Inc.

3808 Wilkinson Road

Sarasota, Florida 34233

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 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: 04-000301

Orders for Case No: 04-000301