STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7815 1/

)

KEYSTONE EXCAVATORS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On April 4, 1991, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Arthur R. Wiedinger, Esquire

Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050

For Respondent: E. J. Bradley, Jr.

Vice President

Keystone Excavators, Inc.

242 Winding Willow Drive Palm Harbor, Florida 34683 1221 North Galloway Road Lakeland, Florida 33809

STATEMENT OF THE ISSUE

The only issue remaining in this case is the extent to which the Petitioner, the Department of Transportation (DOT), should penalize the Respondent, Keystone Excavators, Inc. (Keystone), for operating a commercial motor vehicle with an expired vehicle registration and for exceeding the maximum legal weight of 35,000 pounds allowed under Section 316.545, Fla. Stat. (1987).

PRELIMINARY STATEMENT

In this case, a Department of Transportation (DOT) Motor Vehicle Compliance Officer cited Keystone with a violation for operating a commercial motor vehicle with an expired vehicle registration and for exceeding maximum allowable weight under Section 316.545, Florida Statutes (1987) The DOT assessed a $2,376 fine against Keystone. Keystone paid the fine under protest and requested that the Commercial Motor Vehicle Review Board (the Review Board) drop or reduce the fine. The Review Board considered Keystone's request on August 13, 1987, and denied it by letter dated August 18, 1987. Keystone then requested a rehearing. The Review Board met on December 8, 1987, and denied rehearing by letter dated

December 14, 1987. The denial letter notified Keystone that it could "request to appeal this decision under Section 120.57, Florida Statutes." By letter dated January 5, 1988, Keystone requested an "appeal."

The Review Board did not act on the request to "appeal." By letter June 18, 1990, Keystone inquired into the status of its "appeal." At first, the Review Board believed that the "appeal" had been disposed of when it denied rehearing on December 14, 1987. But further investigation and review of materials submitted by Keystone persuaded the Review Board that Keystone did request an "appeal" by its January 5, 1988, letter and that, by "appeal," Keystone meant a Section 120.57(1) formal administrative proceeding.

Eventually, by letter dated December 10, 1990, the Review Board referred the matter to the Division of Administrative Hearings for formal administrative proceedings.

Keystone's "appeal" alleged in part that an error by the Hillsborough County Tax Collector's office confused Keystone as to the time for renewal of the vehicle registration in question and resulted in Keystone's failure to timely renew. This allegation raised disputed issues of material fact for resolution in formal administrative proceedings. However, by the time of the final hearing, Keystone abandoned that contention, admitted to the violation in question, and introduced only evidence of Keystone's good faith and history of compliance with pertinent statutes and regulations.

The DOT called two witnesses and had four exhibits admitted in evidence. 2/ Keystone's vice president testified in its case-in-chief, and Keystone had five exhibits admitted in evidence. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 90

FINDINGS OF FACT

1. On July 8, 1987, one of Keystone's commercial motor vehicles was operating on Interstate I-4 near Plant City, Hillsborough County, Florida, with a registration that expired on May 31, 1987. According to the DOT scales, the weight of the vehicle, loaded, was 82,520 pounds.

   
   

2. The DOT's Form 509-13, Revised 1/86, titled the "Load Report and Field Receipt," specifies that, in subtracting the legal weight from the the scaled weight to determine the amount of overweight, a ten percent tolerance should be added to the legal weight. This is how the DOT interprets and applies the requirement of Section 316.545(2)(a), Fla. Stat. (1987), that for enforcement purposes, all scaled weights of the gross or axle weight of vehicles and combinations of vehicles shall be deemed to be not closer than 10 percent to the true gross weight.

   
   

3. When Keystone last registered the vehicle in question, it obtained a six-month registration instead of an annual registration. As a result, the registration expired May 31, 1987. For some reason, the sticker stating the month of expiration of the registration was not put on the vehicle's registration tag. Through inadvertent oversight, Keystone failed to renew the registration on the vehicle.

4. When the DOT discovered the violation, it fined Keystone $2,376, calculated as 5 cents for each pound the vehicle weighed over 35,000 pounds. Keystone paid the fine under protest, taking the position that the fine was excessive under the circumstances. On the same day, after the DOT citation, Keystone paid a late fee and renewed the vehicle's registration for the period from May 31, 1987, forward.

   
   

5. Keystone's evidence proved that Keystone did not intentionally violate the vehicle registration laws in this instance. Keystone does not intentionally violate the applicable laws and attempt to avoid or escape detection of violations. Nor does Keystone conduct business in a reckless or careless manner with respect to compliance with the applicable laws and treat penalties for detected violations as a cost of doing business. Notswithstanding this violation, Keystone generally has a good record for operating safe and properly licensed and permitted vehicles. The violation in this case resulted from an isolated case of inadvertent oversight.

   
   

6. Keystone requested that the Commercial Motor Vehicle Review Board (the Review Board) drop or reduce the fine. The Review Board considered Keystone's request on August 13, 1987, and denied it by letter dated August 18, 1987. Keystone then requested a rehearing. The Review Board met on December 8, 1987, and denied rehearing by letter dated December 14, 1987.

   
   

   CONCLUSIONS OF LAW

7. Section 316.545(2)(b), Fla. Stat. (1987), provides in pertinent part: In those cases when the commercial vehicle,

   as defined in s. 316.003(66), is being operated

   over the highways of the state with an expired registration . . ., the penalty herein shall apply on the basis of 5 cents per pound on that weight which exceeds 35,000 pounds.

   
   

8. The DOT has taken the position in this case that Keystone has the burden of proof in this proceeding. But it is clear that, in a case to discipline a licensee, the regulating agency has the burden of proof. Cf. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). Although no judicial decisions on the subject have been found arising out of the assessment of a fine outside the context of a regulatory licensing scheme, all of the judicial decisions follow the general law that the burden of proof is on the party asserting the affirmative of the issue. See Balino v. Dept. of Health, etc.,

   348 So. 2d 349 (Fla. 1st DCA 1977). When an agency assesses a fine, and the assessment is challenged, the burden is on the agency to prove the affirmative of the issue, i.e., the facts necessary to sustain the assessment. The DOT recently has entered a Final Order conceding that it bears the burden of proof in these proceedings. Final Order, Dept. of Transp. v. Jones, DOAH Case No. 90- 3247, entered February 4, 1991.

   
   

9. Both the DOT and Keystone seem to have overlooked the part of Section 316.545(2)(a), Fla. Stat. (1987), which provides: "For enforcement purposes, all scaled weights of the gross or axle weight of vehicles and combinations of vehicles shall be deemed to be not closer than 10 percent to the true gross weight." In accordance with the DOT's own policy interpretation and application of this statute, this means that, for purposes of calculating the amount of the penalty referred to in Section 316.545(2)(a), the legal tolerance must be added to the legal weight before subtracting the legal weight from the scaled weight.

   The penalty referred to in Section 316.545(2)(a) is calculated at the rate of 5 cents for each pound of difference between the scaled weight and the adjusted legal weight, or $2,201.

   
   

10. Under the language of Section 316.545(2)(a) alone, the imposition of a penalty, in the amount specified by the statute, would appear to be mandatory. But Section 316.545(4)(c) and (8), Florida Statutes (1989), gave Keystone the right to "apply to the [Commercial Motor Vehicle Review Board] for a modification, cancellation, or revocation of the penalty, and the review board is authorized to modify, cancel, revoke, or sustain such penalty." Reading all of the provisions of Section 316.545 together, it must be concluded that the statutory penalty is not mandatory but rather is subject to "modification, cancellation, or revocation" by the Review Board.

    
    

11. The DOT took the position in argument contained in its proposed recommended order in this case: "Section 316.545, Florida Statutes, provides no basis for mitigation of an overweight penalty other than through action of the Review Board which denied [Keystone's] request for mitigation." The argument implies that only the Review Board has the authority to modify, cancell or revoke the penalty calculated under Section 316.545(2)(a). But the DOT previously has clarified:

    
    

    The Board is not created as a separate agency

    by this statute but exists "within the Department of Transportation." . . . The Board's affirmance, modification, or revocation of a penalty is an act of a body created within the Department of Transportation, not that of an independent

    entity or agency. . . . Based on the foregoing, it must be concluded that the Department of Transportation is the agency which must by this Final Order render its final action.

    
    

    Final Order, Dept. of Transp. v. Jones, DOAH Case No. 90-3247, entered February 4, 1991. It follows from the quoted conclusion of law that the DOT, as the final order authority in this case, must have the same authority in this proceeding to modify, cancel or revoke a penalty as the Review Board did in the proceeding before it.

    
    

12. Neither the statutes nor the agency rules provide any guidance as to how the DOT's discretion to modify, cancel or revoke penalties should be exercised. However, it is concluded that Finding 6, above, justifies reduction of the penalty in this case from $2,201 to $750, an adequate penalty under the circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order reducing the fine against Keystone to $750.

RECOMMENDED this 2nd day of May, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1991.

ENDNOTES

1. Previously in this proceeding the caption of the case was designated as "Keystone Excavators v. Department of Transportation." As a result of the rulings contained in this Recommended Order, the caption is amended as reflected above.

2. Because of the inaccurate caption in earlier proceedings, the DOT's exhibits were identified as Respondent's Exhibits 1 through 4. Keystone's exhibits were identified as Petitioner's Exhibits 1 through 5.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7815

To comply with the requirements of Section 120.59(2), Fla. Stat. (1989), the following rulings are made on the parties' proposed findings of fact:

DOT's Proposed Findings of Fact.

1. Accepted and incorporated to the extent not subordinate or unnecessary. However, by statute, for enforcement purposes, all scaled weights of the gross or axle weight of vehicles and commbinations of vehicles shall be deemed to be not closer than 10 percent to the true gross weight. See Section 316.545(2)(a), Fla. Stat. (1987).

2.-3. Accepted and incorporated.

4. Rejected as being conclusion of law.

Keystone's Proposed Findings of Fact.

Accepted and incorporated to the extent not subordinate or unnecessary. Keystone admitted the violation but asked for a reduced penalty based on its proven good faith and history of compliance with the pertinent statutes and regulations.

COPIES FURNISHED:

Arthur R. Wiedinger, Esquire Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050

E. J. Bradley, Jr.

Vice President

Keystone Excavators, Inc.

242 Winding Willow Drive Palm Harbor, Florida 34683

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Elyse S. Kennedy Executive Secretary Commercial Motor Vehicle

Review Board

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF TRANSPORTATION WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF TRANSPORTATION CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 90-007815

Orders for Case No: 90-007815