STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3989

) BRISK TRANSPORTATION INC. ) and WILLIAM HENRY GOLDEN, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on September 10, 1991 in Bunnell, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr.

Assistant General Counsel Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Respondent: Nancy Golden

Qualified Representative

6 Black Hawk Place

Palm Coast, Florida 32137 STATEMENT OF THE ISSUE

Whether or not the penalty of $290 levied against Brisk Transportation/William Henry Golden by the Department of Transportation (DOT) for violation of Section 316.545 F.S. for operating a commercial vehicle on an interstate highway in the state of Florida carrying weight in excess of its registered gross vehicle weight is proper.

PRELIMINARY STATEMENT

At the commencement of formal hearing, Nancy Golden was examined and accepted as the qualified representative of William Henry Golden, subject to the filing a post-hearing written authorization from Mr. Golden. The authorization has since been accomplished and Mrs. Golden's acceptance as qualified representative is hereby ratified.

Likewise, Mr. Golden's July 9, 1991 letter was treated as a motion, and argument and evidence was heard thereon. The prayer of that letter/motion was to recognize William Henry Golden as a proper party to this cause and to amend

the style of this cause accordingly. The motion is granted, and the style hereof is amended as set out above.

Petitioner presented the oral testimony of Raul Vargas, Jr., and Lt.

Charles Snellson and had one exhibit admitted in evidence. Respondent presented the oral testimony of Nancy Golden and the undersigned admitted in evidence four of five exhibits offered by Respondent.

No transcript was filed, but all timely filed proposed findings of fact have been ruled on in the appendix hereto, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. DOT Motor Carrier Compliance Officer Raul Vargas, Jr., stopped a commercial vehicle traveling on Interstate Highway 95 (S.R. 9), for a safety inspection on February 19, 1991. The vehicle was operated by William Henry Golden. Officer Vargas had Mr. Golden drive the truck off the interstate highway so that it could be weighed safely.

   
   

2. There was no certified weight station within five miles of where he stopped Mr. Golden's vehicle, so Officer Vargas used portable scales that had last been calibrated January 17, 1991, 32 days preceding this event. The frequency for calibration of these scales is at six-month intervals, so there was great probability that these scales were accurate on February 19, 1991. Officer Vargas weighed the steering, drive, and rear axles of the vehicle, which resulted in a total weight of 85,800 pounds.

   
   

3. Either the vehicle registration or the ICC authorization card ("bingo card") was made out to "Brisk Transportation Inc." The I.R.P. registration permitted only a gross vehicle weight of 80,000 pounds. Officer Vargas issued Load Report and Field Receipt No. 44747J to Brisk Transportation Inc., assessing a penalty of $290.00 for 5,800 pounds over the registered gross vehicle weight. Mr. Golden paid the $290 penalty personally and the vehicle was released to him as operator.

   
   

4. Upon the testimony of Officer Vargas and Lt. Chuck Snellson, Officer Vargas' supervisor who reviewed the incident, and in consideration of these officers' education, training, and experience, it is found that Officer Vargas followed the proper and standard departmental procedure in weighing the vehicle and levying the $290.00 penalty.

   
   

5. Nancy Golden, William Golden's wife, testified that her husband had a contract with Brisk Transportation to transport the product in the vehicle in question on February 19, 1991. She testified further that Mr. Golden was paid based on the product he was carrying at any given time and that there was no relationship between the weight of the product and the pay for transporting it. Nancy Golden was not present at any time when the product was being loaded, unloaded, transported, or weighed. Consequently, her assertion that Mr. Golden's vehicle actually weighed less than the weight registered by Petitioner's portable scale is not credible or persuasive. The several exhibits admitted in evidence in support of Mrs. Golden's assertion are not, in fact, probative of it. 1/

   
   

6. Mrs. Golden's unrefuted testimony that she and Mr. Golden owned the vehicle in question on February 19, 1991 and have since sold it is accepted as credible. There is no dispute between the parties that Mr. Golden, individually, paid the penalty and no suggestion by either party that the

   penalty was paid by Brisk Transportation Inc., a corporation. Even though Officer Vargas cited Brisk Transportation Inc. on the Load Report and Field Receipt, Mr. Golden (truck owner and operator) actually paid the fine to DOT. This entire administrative proceeding originated upon Mr. Golden's petition, and he is the appropriate party in interest here to whom a refund would be owed if the penalty were unlawful.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

   
   

8. Section 316.545 F.S. provides, in pertinent part:

   
   

   316.545 Weight and load unlawful; special

   fuel and motor fuel tax enforcement; inspection; penalty; review.--

   (1) Any weight and safety officer of the Department of Transportation having reason to believe that the weight of a vehicle and

   load is unlawful is authorized to require the driver to stop and submit to a weighing of the same by means of either portable or fixed scales and may require that such vehicle be driven to the nearest weigh station or public scales, provided such a facility is within 5 highway miles. . . .

   * * *

   (2)(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 weight exceeds the declared weight, the penalty shall be 5 cents per pound on the difference between such weights. . . .

   
   

9. William Golden was operating a commercial vehicle on I-95 (S.R. 9) with a registered gross vehicle weight of 80,000 pounds. The vehicle was stopped by Motor Carrier Compliance Officer Vargas and weighed, using recently calibrated scales and standard weighing procedures, which resulted in a gross vehicle weight of 85,800 pounds. Officer Vargas issued Load Report No. 44747J, assessing a penalty of 5 cents a pound for each pound over 80,000 pounds, which came to a total of $290.00, for 5,800 pounds overweight. The penalty of $290.00 was correctly assessed under the provisions of Section 316.545 F.S. Most of Chapter 316 F.S. penalizes operators of motor vehicles.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the penalty of $290.00 was correctly assessed Brisk Transportation Inc./William H. Golden under provisions of Section 316.545 F.S.

DONE and ENTERED this 28th day of October, 1990, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 28th day of October, 1990.

ENDNOTE

1/ Respondent's Exhibits 1 (Trip Report), 2 (Pay Sheet), and 3 (Cash Advance), admitted as business records, do not clarify gross loaded vehicle weight, and therefore are insufficient to show any difference in scale weights between these exhibits and what the loaded vehicle weighed when weighed by Officer Vargas on February 19, 1991. Respondent's Exhibit 4 (Scale Receipt), admitted as a business record, is facially irrelevant to this case because it shows a printed date of 01/06/86 and does not show a printed identification of the vehicle that was weighed. Exhibit 4 likewise does not show who weighed the vehicle or whether the scale was properly calibrated. The only number thereon which could relate to the vehicle in question was scribbled on Respondent's Exhibit 4 by hand. Even if one could infer that #20266 on all Respondent's exhibits refers to truck #20266 listed on Petitioner's Exhibit 1 (Load Report and Field Receipt) for February 19, 1991 and assuming, arguendo, but not ruling, that Mrs. Golden is correct in asserting Respondent's Exhibit 4 somehow can be shown to give the weight of the truck in question on February 18, 1991, what that vehicle weighed on February 18, 1991 is not persuasive that the same vehicle loaded was not properly weighed by Officer Vargas on February 19, 1991. There is no direct evidence of any of the events of February 18 or 19 from Respondent's viewpoint. Respondent presented no witnesses who were present when weighing on February 18, 1991 occurred, if, in fact, weighing occurred on that date.

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3989

The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF):

Petitioner's PFOF:

1. Accepted as modified to more accurately reflect the record as a whole and eliminate legal argument.

   Respondent's PFOF:

2. These proposals are descriptions of what Respondent believes to be the probative value of Exhibits R 1-3. Even if these exhibits could, by themselves, establish that William Henry Golden was in Portwentworth, Georgia on February 18, 1991, the day before this incident, that fact is not dispositive of any material issue in this cause.

4 Is a description of what Respondent believes to be the probative value of Exhibit R-4. That exhibit shows a date different from the date at issue herein and just because Mr. Golden may have been in Portwentworth, Georgia on February 18, 1991 that fact, without direct evidence from a witness, does not establish that the computer printed date of 1/06/86 on R-4 is incorrect. Other reasons this exhibit was not probative of Respondent's position and why this PFOF is not accepted are discussed in footnote 1.

The remaining paragraphs are rejected as legal argument.

COPIES FURNISHED:

Vernon Whittier, Jr., Esquire Department of Transportation (Legal) 605 Suwannee Street, MS #58

Tallahassee, FL 32399-0450

Nancy Golden

6 Black Hawk Place Palm Coast, FL 32137

Ben G. Watts, Secretary

Attention: Eleanor F. Turner, M.S. 58 Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams General Counsel

562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 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 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: 91-003989

Orders for Case No: 91-003989