STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1561

)

TERRY THOMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 18, 1991, in Miami, Florida.

APPEARANCES

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

Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0450

For Respondent: R. Keith Allen, Esquire

6101 Southwest 76th Street South Miami, Florida 33143

STATEMENT OF THE ISSUE

The issue presented is whether Respondent's request for refund of a penalty assessed for driving with an expired registration should be granted.

PRELIMINARY STATEMENT

Petitioner denied Respondent's request for refund of a penalty paid by him as owner of a vehicle operated in Florida with an expired registration, and Respondent timely requested a formal proceeding regarding that determination.

This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner presented the testimony of Officer David M. Pearce, and the Respondent testified on his own behalf. Additionally, Petitioner's Exhibit No.

1 and Respondent's Exhibits Nos. 1 and 2 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent Terry Thomas, a farmer and a resident of Alabama, also does some farming in Dade County, Florida. During November of 1990, he asked his brother who lives in Alabama to bring him a load of fertilizer from Alabama using a tractor-trailer owned by Respondent since it would be cheaper to haul the fertilizer and pay his brother's expenses than it would be to purchase fertilizer in Dade County, Florida.

   
   

2. On November 28, 1990, the tractor-trailer owned by Respondent, driven by his brother, and filled with a load of fertilizer, was stopped on U.S. 27/S.

   R. 25 in Hendry County, Florida, by a Department of Transportation Motor Carrier Compliance Officer performing routine safety checks. Respondent's brother provided the officer with his driver's license and Alabama vehicle tag registration. The Alabama license tag on the tractor and the Alabama license tag on the trailer each showed on its face that it would expire in November of 1990. However, the Alabama registration/tag receipt provided by Respondent's brother to the officer stated that the license tags expired in September of 1990. The registration/tag receipt further provided that Respondent should renew his license tags in October of 1990.

   
   

3. The tractor-trailer was stopped by the Compliance Officer in excess of five miles from the closest weighing station or public scales, and the officer therefore used portable scales to weigh the vehicle. The gross weight of the vehicle was 63,800 pounds. Because the Compliance Officer determined that Respondent's registration had expired, he assessed a penalty for each pound over the legal weight limit of 35,000 pounds. Since the vehicle was 28,800 pounds over the legal limit, the penalty assessed at 5 cents per pound was $1,440.

   
   

4. The tractor-trailer was impounded, and Respondent was notified of the fine. He traveled to Hendry County and paid the fine in cash in order to obtain the release of the tractor-trailer. He seeks a refund of that fine in this proceeding.

   
   

5. Respondent did not intentionally cause to be operated on the roads in the State of Florida a commercial vehicle with an expired registration. From past years he knew that the registration on his vehicle would not be considered by Alabama to have expired until December 1, 1990. He also knew that the tags on both the tractor and the trailer provided that they were valid through November of 1990. He further knew that the State of Alabama would not permit him to renew the registration on his commercial vehicle prior to October of 1990.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 316.545(2)(b), Florida Statutes, provides, in part, as follows: "In those cases when the commercial vehicle . . . 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." Petitioner has failed to carry its burden of proof that Respondent's tractor-trailer was being operated over the highways of the state with an expired registration.

8. Section 32-6-61 of the Alabama Code was admitted in evidence as Respondent's Exhibit No. 2. That statute provides for a staggered system for licensing and registration of motor vehicles. Pursuant to that law, trucks, mobile homes, commercial and fleet vehicles are required to be registered during the months of October and November. That statute further provides as follows: "All license plates issued to motor vehicles for which licensing, registration and taxation are due in October and November shall expire on September 30."

   
   

9. In the case at bar, the Alabama registration for the tractor-trailer in question specified that the tag would expire in September of 1990 and that the owner should renew the tag in October. The tags themselves specified that they were valid through November. Respondent's testimony as to the procedures utilized in Alabama is consistent with the wording of the Alabama statute. He testified that one is not permitted to renew registrations until after the expiration in September of the prior registration, that registrations can be renewed during October and November, and that commercial vehicles are not considered by Alabama to have expired registrations until December 1.

   
   

10. Petitioner does not attempt to penalize Respondent for expired license tags (since they were not), but rather for an expired registration receipt. It is clear from a reading of Section 316.545(2)(b), Florida Statutes, that if a vehicle is registered in another state, it can be operated over the highways of this state. Petitioner cannot penalize Respondent for allowing his tractor- trailer to be driven into the State of Florida during a time period when it could be legally operated in the State of Alabama, its state of registration.

    
    

11. Petitioner argues that October and November are simply a grace period for the renewal of the tractor-trailer registration, and that it can consider the registration to have expired at the end of September. Petitioner's argument ignores the fact that the license tags themselves provided that they were valid through the month of November. Although the registration laws of Alabama do not conform with the registration laws of Florida, that inconsistency does not form a rational basis for penalizing Respondent for an expired registration/tag receipt when the tags themselves have not expired.

    
    

12. Section 316.545(8), Florida Statutes, provides that a civil penalty imposed pursuant to Section 316.545 can be modified, cancelled, or revoked.

Even if Respondent's registration had expired, cancellation or revocation of the penalty imposed on Respondent would be the only appropriate penalty in this case where the vehicle was driven into the State of Florida during a time period when it could be legally operated in its state of registration. Respondent believed his vehicle was legally operating in the State of Florida, and the law of the State of Alabama supports that belief.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Respondent's request for

a refund of the $1,440 penalty paid by him.

DONE and ORDERED this 1st day of July, 1991, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1991.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact #1, except for the last sentence, #2 and #3 have been adopted either verbatim or in substance in this Recommended Order.

2. The last sentence of Petitioner's proposed finding of fact #1 has been rejected as not being supported by any competent evidence.

3. Respondent's proposed findings of fact #1-3, the first sentence of #4, and #5 have been adopted either verbatim or in substance in this Recommended Order.

4. The remainder of Respondent's proposed finding of fact #4 has been rejected as not constituting a finding of fact, but rather as constituting a conclusion of law or argument of counsel.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street, MS 58

Tallahassee, FL 32399-0450

R. Keith Allen, Esquire 6101 Southwest 76th Street South Miami, FL 33143

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0458

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458 Attn: Eleanor Turner, MS 58

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.

Docket for Case No: 91-001561

Orders for Case No: 91-001561