STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1560

)

FLORA-BAMA FARMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on May 28, 1991.

APPEARANCES

The parties are represented as follows:

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

Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Tony D-Amico

Flora-Bama Farms 6404 Mobile Highway

Pensacola, Florida 32506 STATEMENT OF THE ISSUES

Whether Respondent is entitled to a refund of any of the penalty of

$1,091.05 levied against it for violation of Section 316.545, Florida Statutes.

PRELIMINARY STATEMENT

This case arose from a penalty of $1,091.05 levied by the Department for violation of Section 316.545, Florida Statutes, for operating a commercial vehicle on an interstate highway carrying weight in excess of its declared and registered gross vehicle weight.

At the hearing, Petitioner called one witness and offered three exhibits into evidence. Respondent called one witness, but did not offer any exhibits into evidence.

Petitioner and Respondent filed Proposed Recommended Orders on June 6, 1991 and June 3, 1991, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such findings were not shown by the evidence, or were cummulative,

irrelevant, immaterial or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Flora-Bama Farms, was operating a commercial vehicle, traveling west on Interstate Highway 10, on December 1, 1990. The truck stopped at the Department's weight scales located in the area of Sneads, Florida.

   
   

2. The Department's Inspector checked the vehicle registration handed to him by the driver. The registration had expired. Using the tag number, the registration was checked on the Department's computer. The computer showed the tag was good until December 31, 1990 and that the truck was registered for a gross vehicle weight of 54,999 pounds. 1/ The total weight of the truck on said date was 76,820 pounds. The total weight exceeded its registered weight by 21,821 pounds.

   
   

3. Flora-Bama Farms was assessed a statutory penalty of five cents a pound for all weight over the commercial vehicle's registered gross vehicle weight of 54,999 pounds. At five cents a pound, the penalty assessed was $1,091.05.

   
   

4. Tony D-Amico, president and owner of Flora-Bama Farms, had personally registered the truck with the County Tag Agency. He informed the Clerk that he would be carrying 44 fruit bins, weighing approximately one thousand pounds each. Mr. D-Amico did not realize that the weight the truck was registered for should include the vehicle's weight and relied on the employee at the tag office to know the appropriate weight for the truck. Apparently, he did not question and verify whether the gross vehicle weight of 54,999 pounds was adequate for his purposes and paid the tax for the 54,999 pounds gross vehicle weight registration. He had no intent to purposely operate an overloaded truck.

   
   

5. After his truck was fined for being overweight on December 1, 1990, he returned to the Tag Agency and increased its gross vehicle weight

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this action, Section 120.57(1), Florida Statutes.

   
   

7. Pursuant to Section 316.545, Florida Statutes, the Department of Transportation has authority to enforce "... the provisions of weight, load, safety, commercial motor vehicle registration and fuel tax compliance laws "

   and levy fines for violation of those laws.

   
   

8. Section 316.545, Florida Statues provides in part:

   
   

   (b) The officer shall inspect the license plate or registration certificate of the

   commercial vehicle, as defined in s. 316.003(66) to determine if its gross vehicle is in compliance with the declared gross vehicle weight. If its gross vehicle exceeds the declared weight, the penalty shall be 5 cents

   per pound on the difference between such weights.

9. Section 320.01, Florida Statutes provides in part:

   
   

   (12)(b) For heavy trucks with a net weight of 8,000 pounds or more, the gross vehicle weight of the heavy truck, including the gross vehicle weight of any trailer coupled thereto. The gross vehicle weight is calculated by adding

   to the gross weight of the heavy truck the gross weight of the trailer, which is the maximum gross weight as declared by the owner or person applying for registration. (emphasis supplied)

   
   

10. Mr. D-Amico testified that he personally applied for the tag registration for his vehicle and told the Clerk the weight he planned to carry. Although there may have been a misunderstanding between the Clerk and Mr. D- Amico as to the gross vehicle weight, the responsibility for the maximum gross weight of the vehicle (including trailer) is placed by statute on "... the owner or person applying for registration." Section 316.01(12)(b) Florida Statutes.

    
    

11. In this case, at the time he vehicle was cited for a violation of Section 316.545, Florida Statutes, the amount of tax paid to operate Petitioner's vehicle on the highways of this State was for a maximum gross vehicle weight of 54,999 pounds, 21,821 pounds less than the actual gross vehicle weight of the truck. Therefore, the penalty of $1,091.05 assessed Flora-Bama Farms by the Department of Transportation for operating a commercial vehicle carrying a load in excess of its registered gross vehicle weight on the highways of this state was correct under the provisions of Section 316.545, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding that the penalty of

$1,091.05 was correctly assessed against Flora-Bama Farms, pursuant to Section 316.545, Florida Statutes.

DONE and ORDERED this 11th day of June, 1991, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 11th day of June, 1991.

ENDNOTES

1/ The VIN (vehicle identification number) number on the truck was checked with the computer readout and they were the same.

APPENDIX TO RECOMMENDED ORDER

1. The facts contained in paragraphs 1, 2 and 3 of Respondent's Proposed Recommended Order are adopted are adopted in substance insofar as material.

   
   

2. The facts contained in paragraph 2 of Respondent's Proposed Findings of Fact are adopted in substance in sofaras material.

   
   

3. The facts contained in paragraph 1, 3, 4, 5 and 6 of Respondent's Proposed Findings of Fact are subordinate.

   
   

4. Paragraphs 7, 8 & 9 of Respondent's Proposed Findings of Fact were conclusions.

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Tony D-Amico Flora-Bama Farms

6404 Mobile Highway

Pensacola, Florida 32506

Ben G. Watts, Secretary

ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel

562 Haydon Burns Building Tallahassee, Florida 32399-0458

Docket for Case No: 91-001560

Orders for Case No: 91-001560