STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2250

)

CYPRESS CREEK LANDSCAPE )

SUPPLY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On May 16, 1991, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

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

Assistant General Counsel Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450 For Respondent: No Appearance.

STATEMENT OF THE ISSUES

The issues in this case are (1) whether the Petitioner, the Department of Transportation, should assess against the Respondent, Cypress Creek Landscape Supply, Inc., a penalty for violating the Taylor Road bridge weight restriction, and (2), if so, the amount of the penalty.

PRELIMINARY STATEMENT

On February 9, 1990, the Respondent was cited and penalized $1,388 for being responsible for the operation of a commercial motor vehicle over a bridge on Taylor Road (County Road 765A) near Punta Gorda in Charlotte County, Florida, that exceeded the posted maximum weight. The record in this case reflects that the Respondent paid the fine under protest and requested a review by the Florida Commercial Motor Vehicle Review Board. The record reflects that a hearing was scheduled before the Board on November 8, 1990, but the Respondent did not appear, and the Board upheld the fine. Upon notification of the Board action, the Respondent then requested Section 120.57(1), Fla. Stat. (1989), formal administrative proceedings.

On April 9, 1991, the Department referred the matter to the Division of Administrative Hearings for formal administrative proceedings. Final hearing

was scheduled for May 16, 1991, but the Respondent again failed to appear for the hearing.

At the final hearing, the Department called one witness to testify and had Petitioner's Exhibits 1 and 2 admitted in evidence. No transcript was prepared. The Department's proposed findings of fact are accepted and incorporated. (The Respondent did not file a proposed recommended order.)

FINDINGS OF FACT

1. On February 9, 1990, a commercial motor vehicle owned and operated by the Respondent, Cypress Creek Landscape Supply, Inc., was driven over the bridge over Alligator Creek on Taylor Road (County Road 765A), a federal aid primary highway near Punta Gorda, Charlotte County, Florida. The vehicle, loaded with mulch, was weighed at 71,760 pounds.

   
   

2. The Taylor Road bridge is part of a route that can be taken by I-75 traffic wishing to bypass one of the Department's I-75 weight stations. The bridge is posted as being restricted to a maximum weight of 22 tons. The weight restriction is posted at the bridge, and warnings that the weight restricted bridge is ahead appear at conspicuous places at terminals of all intermediate crossroads and road junctions with the section of Taylor Road containing the weight restricted bridge. Notices are posted twice near the exit from I

   the Respondent's vehicle used to bypass the Department weight station. From these locations, the Respondent's vehicle could have been turned around to avoid the weight restricted bridge.

   
   

3. A Department Compliance Officer cited the Respondent for violating the maximum weight restriction for the Taylor Road bridge and assessed a $1,388 penalty, calculated at five cents per pound by which the scaled weight of the vehicle (71,760) exceeded the maximum weight (44,000 pounds).

   
   

4. The Department's Form 509-13, Revised 05/89, 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 Department interprets and applies the requirement of Section 316.545(2)(a), Fla. Stat. (1989), 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.

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 316.555, Fla. Stat. (1987), authorizes the Department and local authorities (such as counties) to "prescribe, by notice hereinafter provided for, loads and weights . . . lower than the limits prescribed in this chapter and other laws, whenever in its or their judgment any road or part thereof or any bridge or culvert shall, by reason of its design, deterioration, rain, or other climatic or natural causes be liable to be damaged or destroyed by motor vehicles, trailers, or semitrailers, if the gross weight . . . thereof shall exceed the limits prescribed in said notice." As for the notice requirements, the statute provides: "The notice or the substance thereof shall be posted at conspicuous places at terminals of all intermediate crossroads and road junctions with the section of highway to which the notice shall apply."

   
   

6. Section 316.545(2)(a), Fla. Stat. (1987), authorizes the Department to assess a penalty when a vehicle's gross weight is unlawful. Under Section

   316.545(3)(b), the penalty is calculated at five cents a pound for each pound of weight in excess of the maximum when the excess weight exceeds 200 pounds.

   However, Section 316.545(2)(a) also 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 Department'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.

   
   

7. In this case, the evidence proved that the Taylor Road bridge was properly posted for a maximum weight of 22 tons. The adjusted legal weight under Section 316.545(2)(a) was therefore 48,400 pounds. The scaled weight was 71,760, for a difference of 23,360, and a penalty of $1,168.

   
   

8. 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 the Respondent 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. It is concluded that the DOT, as the final order authority in this case, has the same authority in this proceeding to modify, cancel or revoke a penalty as the Review Board did in the proceeding before it. See Final Order, Dept. of Transp. v. Jones, DOAH Case No. 90-3247, entered February 4, 1991; Recommended Order, Dept. of Transp. v. Keystone Excavators, Inc., DOAH Case No. 90-7815, entered May 2, 1991.

   
   

9. Other than the proper application of Section 316.545(2)(a), as set forth in Conclusion 2, above, there was no evidence on which to modify, cancel, or revoke the statutory penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order finding the Respondent, Cypress Creek Landscape Supply, Inc., guilty of violating the Taylor Road bridge weight restriction and assessing a $1,168 penalty (reduced from $1,388).

RECOMMENDED this 29th 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 29th day of May, 1991.

COPIES FURNISHED:

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

605 Suwannee Street

Tallahassee, Florida 32399-0450

Steven P. Lewis, President Cypress Creek Landscape

Supply, Inc.

12734 North Florida Avenue Tampa, Florida 33612

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: 91-002250

Orders for Case No: 91-002250