STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) TRANSPORTATION, WEIGHT REVIEW ) BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2264

) DAVIE DES ROCHER SAND CORP., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, commencing at 9:30 a.m., February 15, 1980, in Room 359, State Office Building, 1350 Northwest 12th Avenue, Miami, Florida.

APPEARANCES

For Petitioner: John E. Griffin Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

For Respondent: Arthur F. McCormick, Sr., Esquire and

Arthur F. McCormick, Jr., Esquire 7900 Red Road

South Miami, Florida 33148 ISSUE

The issue here presented is whether the Respondent, Davie Des Rocher Sand Corp., is liable for the payment of $136.45 assessed on a penalty for an alleged violation related to the maximum allowable weights permitted for a truck traveling on the roads of the State of Florida. See Sections 316.535 and .545, Florida Statutes.

FINDINGS OF FACT

1. The facts reveal that Jose Gonzalez, a driver for the Respondent, operating one of Respondent's tractor/trailer pieces of Respondent, went to a rock company located in Hollywood, Florida, on February 13, 1978, for the purpose of picking up a load of "P" rock. This rock was purchased from Miramar Lakes, d/b/a Miramar Rock on that date and the driver, Gonzalez, was given a weight ticket. The weight ticket from Miramar Rock reflected a gross weight of 72,360 pounds, which is the total of the equipment and load.

2. (The scales at Miramar peck used to weigh the Respondent's equipment and load had been certified by the Petitioner to be accurate on June 7, 1977, and again on April 11, 1978.)

   
   

3. The weather on February 13, 1978, was clear and the purchase, loading and weighing done on the subject equipment was without incident, until the driver attempted to pull away from the weight scales. At that moment the universal joint and yoke snapped and this caused the vehicle to be inoperable. Gonzalez left the truck at the Miramar Rock Company. At that point, the load was covered by a canvas and the trailer was not seeping or leaking water from the rock aggregate.

   
   

4. Later, on February 13, 1978, a mechanic employed by the Respondent came to effect repairs to the vehicle, but due to the unavailability of certain parts necessary to complete the repairs, did not finish the work until February 14, 1978. When the repairs had been completed on that date, the driver, Gonzalez, removed the truck from the Miramar Rock compound and entered the roads of Broward County, Florida.

   
   

5. At around 9:15 a.m. on February 14, 1978, Gonzalez arrived at the intersection of Hollywood Boulevard and Flamingo Road in Broward County, Florida, eastbound on Hollywood Boulevard. At that intersection, officers employed by the Florida Highway Patrol, Weights Division, intercepted the Des Rocher truck and caused the vehicle to stop. After the stop the equipment being operated at that time was established to be a vehicle measuring between 37 feet to 38 feet from the front axle to the rear axle, and the peak of the rock load was located in the center rear portion of the trailer. Officer Wilkerson of the Florida Highway Patrol observed water dripping out of the rear tailgate after making the stop.

   
   

6. Gonzalez was asked to produce a weight ticket and in response to this request produced the weight ticket given him by Miramar Rock on February 13, 1978. Officer Wilkerson commented that this ticket was from the day before and that a ticket bearing the current date was required. Gonzalez was then told that the truck would be weighed with the method for weighing the truck being by two portable scales. Officer Wilkerson weighed one side of the truck and Officer Herron went to the other side of the truck. Wilkerson weighed the steering axle on his side of the truck; the drive axle on his side of the truck, and two tires on the rear tandem axles on his side of the truck. It is not known what Officer Herron did, if anything, in effecting the purposes of this inspection and weigh-in, because Officer Herron did not appear at the hearing in this cause and was not seen by Officer Wilkerson in conducting his inspection activities, if any. Therefore, the total weight of the truck as ascertained from the inspection ostensibly conducted by these officers was not shown by competent evidence. However, it was demonstrated through the testimony in this hearing that the plan which the officers had for making the roadside inspections was one which called for basically stopping all trucks of the category of aggregate haulers that were eastbound through the intersection on Hollywood Boulevard, to the exclusion of pickup trucks and moving vans. After stopping the former category of trucks, some were weighed and others were not.

   
   

7. As a result of the stop, Gonzalez was ticketed for a weight violation and that ticket was in the amount of $136.45 as an assessed penalty.

   
   

8. Gonzalez then took the truck back to the Des Rocher installation which contained a set of scales and between 10:15 a.m. and 10:30 a.m. the truck was weighed and shown to be 35.64 tons, or 71,280 pounds as the gross weight

   including the equipment and load. (The scales that were utilized had been certified by the Petitioner on June 7, 1977, and again on May 8, 1978.)

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

10. In considering the question of the Petitioner's entitlement to assess and collect a fine in the amount of $136.45 for the violation which allegedly occurred in this instant case, the beginning point is to determine the authority of the officer or agent of the Department of Highway Safety and Motor Vehicles to make such a stop. The scope of that authority is controlled by Subsection 316.545(1), Florida Statutes. 1/ Pursuant to this provision an officer may stop a vehicle only when that officer has reason to believe that the weight of the vehicle and load is unlawful. If there is such "reason to believe" then the officer is authorized to require the driver to stop his vehicle and submit to a weighing of the vehicle by portable scales or stationary scales, to include the possibility that the vehicle be driven to the nearest public scale, provided those scales are within two miles of the location of the detention.

    
    

11. In the present situation, the officers did not stop the Des Rocher truck in accordance with the statutory safeguard of "reason to believe". The officers stopped the Respondent's vehicle as a part of an inspection pattern that called for stopping all trucks in the category of aggregate hauler and excluding all pick-ups and moving vans, beyond which some of the trucks which had been stopped were weighed and others were released without weighing. This pattern of conduct is violative of Subsection 316.545(1), Florida Statutues, which is the controlling statement of authority beyond whose dictates these officers were not free to operate. For this reason, the assessment of a fine in the amount of $150.45 was not authorized and that fine should not stand.

    
    

12. Moreover, on the merits of the case, the Petitioner who has the burden to establish the propriety of this fine, has failed to offer sufficient proof to sustain that burden. The record is devoid of any competent evidence that would establish the weight of the vehicle and load at the juncture of the stop and weigh-in, and the evidence that was adduced at the hearing proves that the vehicle and load weighed between 71,280 and 72,360 mounds as constituted on the day of the inspection, this weight range being within the parameters of allowable weights established for a vehicle and load in a truck which measured between 37 and 39 feet from the first to the last axles. This conclusion is reached upon review of Subsection 316.535(3), Florida Statutes, which establishes the base weight for vehicle and load in a truck with these distances between the first and last axles to be 66,610 pounds with an additional allowance of 10% above that amount to compensate for possible errors in the calibration of the scales upon which the vehicle and load had been weighed.

This 10 percent allowance is established in Subsection 316.545(2), Florida Statutes. Taking into account the 10 percent allowance, the vehicle in question could weigh 73,271 pounds and the range of weights established in this hearing shows that the vehicle in question was inside the range of allowable weights.

Consequently, on the merits of the case, as presented, no violation has been established.

It is, therefore, RECOMMENDED

That the Petitioner, State of Florida, Department of Transportation, Weight Review Board, dismiss its claim for a fine in the amount of $136.45 and that the Respondent, Davie Des Rocher Sand Corp. be allowed to go forth without further answer.

DONE AND ENTERED this 4th day of March, 1980, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings ROOM 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTE

1/ "(1) Any Officer or agent of the Department of Highway Safety and Motor Vehicles or the Florida Public Service Commission having reason to believe that the weight of a vehicle and load is unlawful is authorized to require the driver to stop and submit to a weighing of the same either by means of portable or stationary scales and may require that such vehicle be driven to the nearest public scales, provided such public scales are within 2 miles.

COPIES FURNISHED:

John E. Griffin, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301

Arthur F. McCormick, Sr., Esquire and Arthur F. McCormick, Jr., Esquire

7900 Red Road

South Miami, Florida 33145

William N. Rose, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Attention: Weight Review Board

Docket for Case No: 79-002264

Orders for Case No: 79-002264