STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2251

) FLORIDA MINING AND MATERIALS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Fort Myers, Florida, on June 6, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: H. Robert Bishop, Jr., Esquire

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

Tallahassee, Florida 32399-0458

For the Respondent: Ray Watson

Operations Manager

Florida Mining & Materials Post Office Box 22367

Fort Myers, Florida 33902 STATEMENT OF THE ISSUES

Should Respondent be fined $2,035.00 for allegedly violating Section 316.535, Florida Statutes?

PRELIMINARY STATEMENT

By letter dated December 4, 1990, Earl Webber, District Manager for Respondent, Florida Mining & Minerals' Southern District, appealed a decision of the Commercial Carrier Motor Vehicle Review Board denying Respondent's request for a refund of a fine imposed against it by the Department for an alleged violation of Section 316.535, Florida Statutes. Thereafter, on April 5, 1991, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and, by Notice of Hearing dated April 25, 1991, Hearing Officer Donald R. Alexander set the matter for hearing in Fort Myers on June 6, 1991. By Order dated May 21, 1991, the undersigned, to whom the case had been transferred in the interim, identified the place of hearing which was held as set.

At the hearing, Petitioner presented the testimony of Ellis K. Burroughs, a Weight Officer, and Lieutenant Thomas P. Thomson, supervisor for weight and

vehicle registration enforcement in southwest Florida, both employees of the Department of Transportation; and Elyse Kennedy, Executive Secretary to the Department's Commercial Motor Vehicle Review Board. The Department also introduced Petitioner's Exhibits 1 and 2. Respondent presented the testimony of Ray Watson, its Operations Manager for the Bradenton to Naples area, and introduced Respondent's Composite Exhibit A.

No transcript was provided and neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was responsible for the licensing and regulation of the operation of commercial motor vehicles on all streets and roads in this state. The Respondent, Florida Mining & Materials operates and, at the time of the alleged violation, operated commercial vehicles over the roads of this state.

   
   

2. By letter dated June 11, 1990, George L. Crawford, P.E., Acting Director of Lee County's Department of Transportation and Engineering, notified the Petitioner's Office of Motor Carrier Compliance that it appeared trucks were exceeding the posted weight limits of the Ortiz Road Culvert, located 0.3 miles south of SR - 80 in Lee County.

   
   

3. As a result of this letter, the Department began to monitor the cited culvert and on July 19, 1990, Officer Ellis K. Burroughs observed Respondent's cement dump truck cross the culvert in front of and to the side of which, in plain view, was a sign indicating that trucks weighing over 5,000 pounds should detour and go down Luckett Road without crossing the culvert. According to Mr. Burroughs, Respondent's vehicle did not detour as directed and went north on Ortiz Avenue, over the culvert. Mr. Burroughs gave chase and finally stopped the driver of Respondent's truck some 6 or 7 blocks north of the culvert. When asked why he had failed to use the detour and had crossed the culvert, the driver of the truck said his office had told him to do so and he had done so before. This comment is introduced not to show aggravation but to dispel any inference of lack of knowledge of the limitation.

   
   

4. The sign in question had been erected on December 4, 1980. Some months after this incident, the sign was changed and the current permissible weight is

   20 tons. No reason was given for the change nor was any information presented as to whether any modifications were done to the culvert before or since the change. The culvert in issue was described as of light construction - a culvert pass-through underneath the roadway.

   
   

5. Mr. Burroughs weighed the offending truck at the scene and determined it had a gross weight of 45,700 pounds. The legal weight on that bridge at the time was only 5,000 pounds and, therefore, the Respondent's truck was overweight by 40,700 pounds. At a penalty of 5 cents per pound of violation, the penalty was assessed at $2,035.00 which was paid by the Respondent on August 3, 1990.

   
   

6. Respondent's representative, Mr. Watson, was not present at the time and had no personal knowledge of the incident. He claims, however, that his company was operating under the impression that even at the time, the weight limit over that culvert was 20 tons. He does not concede that at the time of the incident the load limit was only 5,000 pounds. The weight of the evidence, however, is that it was.

7. He claims this road is the only way they have of getting to certain jobs and if cut off from crossing, they are cut off from their business. Mr. Watson admittedly is not familiar with the area and overlooks the fact that there are alternative routes to the other side of that culvert, albeit somewhat longer. He discounts the somewhat longer, (2 1/2 miles additional), route claiming, "That's a lot of milage when what you're hauling is redi-mix concrete."

   
   

8. Mr. Watson introduced several pictures of other large trucks going over that same culvert in an effort to show that other vehicles may also have been in violation. Some of those pictures were taken subsequent to the limit change and reflect that the limit is 20 tons. Further, Mr. Burroughs and Mr. Thompson indicate that subsequent to the letter from the County requesting increased surveillance, at least 45 to 50 citations were issued at that culvert. Some carriers were cited several times. Respondent was cited only once.

   
   

9. After paying the penalty assessed, Respondent appealed it to the Department's Commercial Vehicle Review Board which reviewed it at its November 8, 1990 meeting and determined that a refund was not appropriate.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

11. Authority to enforce the weight laws of the state is granted to the Department of Transportation by Section 316.640, Florida Statutes. Consistent therewith, the Department assessed the penalty in issue here under the authority granted it under the provisions of Section 316.545, Florida Statutes which provides that a weight officer of the Department who has reason to believe that the weight and load of a vehicle is unlawful may stop it and weigh it. If the vehicle is overweight, it shall be presumed to have damaged the highways of the state and the damage is, by statute, fixed at 5 per pound for each pound in excess of the maximum.

    
    

12. Notwithstanding that several months after the issuance of the citation in this case the weight on the culvert in issue was increased from 5,000 pounds to 20 tons, the evidence of record clearly indicates that at the time in question, Respondent's vehicle crossed the culvert and when it did so, was significantly overweight. There is no evidence to show, as Respondent urges, that the restriction was inequitably imposed. To the contrary, the testimony of the officers clearly demonstrates that within the same time frame, a substantial number of other violators were cited for the same infraction at the same site.

    
    

13. Respondent was afforded the opportunity to appeal the original citation and did so and the appellate authority, having duly considered its submittal, declined to afford the relief sought. Therefore, here, no basis is shown to justify relieving Respondent of its responsibility to obey the laws of this state as they existed at the time of violation.

RECOMMENDATION

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

RECOMMENDED that the Respondent's request for a refund of the $2,035.00 fine paid for the violation of the weight limits on the culvert in question here be denied.

RECOMMENDED this 8th day of July, 1991, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 8th day of July, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to

Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

COPIES FURNISHED:

H. Robert Bishop, Jr., Esquire Department of Transportation 695 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458

Ray Watson Operations Manager

Florida Mining & Materials Post Office Box 2367 Tallahassee, Florida 33902

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 91-002251

Orders for Case No: 91-002251