STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOWELL TRANSPORTATION )

SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-0534

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this proceeding was held in Melbourne, Florida on May 17, 1988, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: William H. Cantillon, General Manager

Yowell Transportation Services, Inc. 7804 Ellis Road

Melbourne, Florida 32904

For Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450 BACKGROUND AND PROCEDURAL MATTERS

Pursuant to Section 315.545(8), F.S. Petitioner (Yowell) appealed to the Commercial Motor Vehicle Review Board for cancellation of fines paid on two shipments of apple juice concentrate from Cape Canaveral to Bradenton, Florida. The appeal was referred to the Division of Administrative Hearings.

In support of its position, Yowell presented the testimony of William Cantillon and a single composite exhibit, including five attachments. These were received without objection except for attachment #3 which was objected to on the basis of hearsay and failure to establish authenticity. DOT presented the testimony of Ferris Rogers, J. D. Morris and Glen Turner. Its five exhibits were admitted without objection.

After the hearing and the preparation of a transcript, DOT submitted a proposed recommended order. The proposed findings of fact have been substantially incorporated herein. Yowell submitted a proposed order in the form of four conclusory statements. Conclusions #1 and #4 are adopted.

Conclusions #2 and #3 are rejected as unsupported by the evidence.

ISSUES

The basic issue is whether the fines were properly assessed. This issue is determined by a consideration of whether the shipments in question were traveling in interstate or intrastate commerce. A secondary issue is which party has the burden of proof.

FINDINGS OF FACT

1. Yowell Transportation Services, Inc. is a company based in Dayton, Ohio, and doing business in Florida. It maintains an office in Melbourne, Florida. William Cantillon is the General Manager in the Melbourne office.

   
   

2. Yowell has authority granted by the Interstate Commerce Commission to operate as a contract carrier, by motor vehicle, in interstate or foreign commerce.

   
   

3. The State of Ohio is not a member of the International Registration Plan (IRP) which permits commercial vehicle operation in member states. Commercial vehicles from non-member states are required to have Florida registration for intrastate operations. Ohio and Florida have a reciprocity agreement only for interstate movement of commerce.

   
   

4. In mid July 1987, William Cantillon was contacted regarding a shipment of 1,000 drums of frozen apple juice concentrate originating in Buenos Aires, Argentina. Yowell was hired to transport the shipment from Port Canaveral to Bradenton, where it was to be processed by Tropicana into reconstituted apple juice.

   
   

   The cargo was discharged from the vessel on July 23, 1987, and was placed in a freezer owned by Mid-Florida Freezer Warehouses, Ltd., in Cape Canaveral. An international bill of lading was not obtained because the cargo cleared customs in Port Canaveral.

   
   

5. On July 29, 1987, a Yowell truck transporting part of the concentrate was stopped by a DOT Motor Carrier Compliance Officer at the Plant City scales on Interstate 4. The officer weighed the vehicle and checked the registration and bill of lading. The vehicle was registered in the State of Ohio and the bill of lading reflected movement between Cape Canaveral, Florida and Bradenton, Florida. The officer issued a load report and field receipt reflecting a fine of $2,104.00 for non-registered overweight. The fine was paid and the truck was released the same day.

   
   

6. On August 11, 1987, another Yowell vehicle carrying frozen concentrate was detained by a DOT Motor Carrier Compliance Officer at the Plant City scales. The vehicle was registered in Ohio and not in Florida. The vehicle was weighed and the bills of lading were examined. There was a bill of lading from Mid- Florida Freezer and another from Yowell. Both showed the shipping point as Cape Canaveral, Florida and the destination as Bradenton, Florida. The Yowell bill of lading described the commodity as apple juice, originating in Argentina, arriving in the U.S. on 7/22/87, on the vessel Betty B. The officer issued a load report and field receipt imposing a $1,796 fine for non-registered overweight. The fine was paid the same date.

   
   

7. In both instances, based on the documentation produced by the Yowell drivers, DOT considered the shipments to be in intrastate commerce. If there

   had been an international bill of lading, the shipments would not have been questioned by the officers.

   
   

8. William Cantillon's contact regarding his company's services was with the Florida agent for the Argentine company that produced the apple juice. The only evidence presented by Yowell regarding the juice sales transaction is a photocopy of a statement dated November 23, 1987, on Jucoman S. A. letterhead, addressed to Camerican International, Inc., 480 Alfred Avenue, Teaneck, N.J., 07666, USA:

   
   

   This is to certify that 1000 drums of apple juice concentrate were packed and shipped by us to Bradenton, Florida on the merchant vessel Betty B sailing June 22, 1987 from Buenos Aires, Argentina.

   
   

   The signature is illegible. No person from Jucoman or from Camerican International testified to explain this statement.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this proceeding pursuant to Section 120.57(1), F.S.

   
   

10. The DOT has authority to enforce the provisions of weight, load, safety, commercial motor vehicle registration and fuel tax compliance laws and to levy fines for violations, pursuant to Section 316.545, F.S.

    
    

11. Unless a commercial vehicle is operating in interstate commerce or is registered in a state under a reciprocal agreement with the State of Florida, the vehicle must be registered in Florida if it is driven on the roads of this State. See Section 320.0715, F.S., and Section 320.39, F.S.

    
    

    Ohio's reciprocal agreement with Florida is limited exclusively to interstate commerce.

    
    

12. Yowell has the burden of proof that it is entitled to an exemption from registration based on its claim that the shipments at issue were foreign or interstate, rather than intrastate shipments between two points in Florida. Harper, et al. v. England, 168 So. 403, 406 (Fla. 1936).

    
    

13. In Reliance Fertilizer Co. v. Davis, 169 So. 379, the Florida Supreme Court in 1936 determined that fertilizer delivered from the shipper to the shipper's agent in Florida lost its interstate character and became an article of merchandise to be disposed of in intrastate commerce by the agent of the shipper to customers:

    
    

    It is well settled that where goods handled by the agent of manufacturer or shipper have ceased to be the subject of interstate commerce; have come to rest in a state other than that in which they were manufactured and from which they were

    shipped; and are sold, in trade in that state to which they have been shipped and delivered by the agent of the shipper, such sales by such agent to the customer is an intrastate

    transaction, and the shipper, whether an individual or a corporation, under these conditions will be held to be doing business within the state where such sale is consummated.

    Reliance, p. 581

    
    

    Yowell never proved the relationship, if any, between Jucoman, the producer in Argentina, and Tropicana, the recipient in Bradenton. The evidence never established whether the juice was sold directly by Jucoman to Tropicana or whether Jucoman's agent in Florida sold or allocated the shipment.

    
    

    The photocopied letter, attachment #3 to Yowell's composite exhibit, is hearsay, and is not competent evidence in and of itself to support a finding of fact, even in an administrative hearing where the rules of evidence are relaxed. Section 120.58(1)(a), F.S.

    
    

    Aside from the hearsay nature of the exhibit, the statement on its face is dated well after the shipment was made. It mentions Bradenton, but does not establish the relationship between Jucoman and Tropicana or the shipper's intent at the time the shipment was made. Nor does it explain why the statement was being provided or who Camerican International was.

    
    

    The test of interstate commerce described in the Florida Supreme Court case above, is consistent with the general interpretation provided to William Cantillon by the U.S. Interstate Commerce Commission. (Attachment 2 to Yowell's composite exhibit).

    
    

14. The shipments handled by Yowell were between two points in Florida, were not in foreign or interstate commerce, were not exempt under the reciprocal agreement and were, therefore, subject to the fines assessed under Section 316.545, F.S. for nonregistration in Florida.

RECOMMENDATION

Based on the foregoing, it is, hereby RECOMMENDED:

That a final order be entered finding that Yowell failed to prove entitlement to an exemption and that the fines levied were proper.

DONE and RECOMMENDED this 8th day of July, 1988, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1988.

COPIES FURNISHED:

William H. Cantillon General Manager

Yowell Transportation Services, Inc. 7830 Ellis Road

Melbourne, Florida 32904

V. L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Kaye N. Henderson, P. E., Secretary Department of Transportation

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450 ATTN: Eleanor F. Turner, M.S. 58

Thomas H. Bateman, III, Esquire General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Docket for Case No: 88-000534

Orders for Case No: 88-000534