STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO.91-4953

)

KENNETH KOOZER, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on September 23, 1991, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Jay O. Barber, Esq.

Department Of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450 For Responden No appearance.

STATEMENT OF THE ISSUES

The issue for determination is whether the Commercial Motor Vehicle Review Board's decision in this matter is proper; a determination that necessarily requires a finding of whether Respondent is liable, in two separate instances, for payment of a civil penalty for commission of the infraction of interstate operation of a commercial motor vehicle without first obtaining a fuel use permit.

PRELIMINARY STATEMENT

Petitioner Department of Transportation (DOT) notified Respondent of the Commercial Motor Vehicle Review Board's decision to deny Respondent's request for refunds in connection with two $50 civil penalties and two $45 fuel use permit charges assessed against him. Respondent was apprised of the opportunity to request formal administrative proceedings regarding the decision. Respondent requested a formal hearing.

Thereafter the matter was transferred to the Division Of Administrative Hearings on August 5, 1991, to arrange and conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, DOT presented the testimony of one witness and two evidentiary exhibits. No appearance was made on behalf of Respondent and no evidence was presented on his behalf.

No transcript of the final hearing was provided by the parties. Submission of proposed findings of fact was waived by Petitioner. Proposed findings were not timely submitted by Respondent and none had been received on his behalf at the time of the preparation of this recommended order.

FINDINGS OF FACT

1. On November 18, 1990, Respondent was driving on Interstate Highway 95 (I-95) in a three axle truck powered by motor fuel. He stopped the vehicle at Petitioner's weigh station located on I-95 near Yulee, Florida.

   
   

2. Petitioner's station law enforcement personnel observed that there was no fuel tax identification on the truck and no temporary fuel tax permit.

   
   

3. Respondent was assessed a civil penalty by weigh station law enforcement personnel of $50 as a result of Respondent's failure to comply with the State of Florida's fuel tax registration requirements. He was also issued a

   10 day temporary fuel tax permit for a fee of $45 to enable the vehicle to proceed from the weigh station.

   
   

4. On December 4, 1990, Respondent was again driving on Interstate Highway

   95 (I-95) in the same three axle truck. Again, he stopped the vehicle at Petitioner's weigh station located on I-95 near Yulee, Florida.

   
   

5. Petitioner's station law enforcement personnel again observed that there was no fuel tax identification on the truck and no temporary fuel tax permit. Respondent informed station personnel that an application for the appropriate permit had been made, but offered no documentation to support this claim.

   
   

6. Respondent was assessed another civil penalty by weigh station law enforcement personnel of $50 as a result of this second failure to comply with the State of Florida's fuel tax registration requirements. He issued a second

   10 day temporary fuel tax permit for a fee of $45 to enable the vehicle to proceed from the weigh station.

   
   

7. Respondent requested that the Commercial Motor Vehicle Review Board review the civil penalty assessment. Subsequently, the Board met on May 9, 1991, and reviewed the civil penalty assessed against Respondent on each occasion.

   The Board determined that a refund of the penalties paid by Respondent was not appropriate.

   
   

8. By written request filed with Petitioner on June 10, 1991, Respondent requested a formal hearing regarding the propriety of the penalties assessed against him.

   
   

   CONCLUSIONS OF LAW

   
   

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

10. Any attempt by a regulatory agency to discipline a licensee places the burden of proof of the licensee's violation, through "clear and convincing evidence," upon the agency. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. In the context of assessment of a fine outside a regulatory licensing scheme, decisions generally place the burden of proof upon the party asserting the affirmative of an issue. See, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

12. When an agency assesses a fine which is challenged, the agency must assume the burden of proof of facts sustaining that assessment. The DOT, as the party asserting the affirmative of the issue of the propriety of the fine assessed in this matter, has the burden of proving by a preponderance of the evidence, facts sufficient to support the fine's imposition. See, Department of Transportation v. Norman B. Jones, DOAH Case No. 90-3247, Recommended Order entered September 24, 1990, adopted by Final Order entered February 4, 1991.

    
    

13. The Commercial Motor Vehicle Review Board is created pursuant to Section 316.545(7), Florida Statutes, which reads in pertinent part as follows:

    
    

    (7) There is created within the Department of Transportation the Commercial Motor Vehicle Review Board, consisting of three permanent members who shall be the secretary of the Department of Transportation, the executive director of the Department of Highway Safety and Motor Vehicles, and the Commissioner of

    Agriculture, or their authorized representatives, which may review any penalty imposed upon any vehicle

    or person under the provisions of this chapter relating to weights imposed on the highways by the axles and wheels of motor vehicles, to special fuel and motor fuel tax compliance, or to violations of safety regulations.

    
    

14. Section 316.545(8), Florida Statutes, authorizes the Commercial Vehicle Review Board to modify, cancel, revoke or sustain any penalty for which review is sought. In the event that the penalty is sustained and subsequently challenged in a Chapter 120 hearing, authority for final agency action adopting or rejecting recommendations of the hearing officer rests with DOT. See, final order issued in Jones, supra.

    
    

15. Section 207.002(2), Florida Statutes, defines a commercial motor vehicle as follows:

    
    

    (2) "Commercial motor vehicle" means any vehicle not owned or operated by a governmental entity which uses special fuel or motor fuel on the public highways; and which has a gross vehicle weight in excess of 26,000 pounds, or has three or more axles regardless of weight, or is used in combination when the weight of such combination exceeds 26,000 pounds gross vehicle weight. (Emphasis supplied.)

16. Section 207.004(1)(a), Florida Statutes, places the following requirement on commercial vehicles such as the one driven by Respondent:

    
    

    (1)(a) No motor carrier shall operate or cause to be operated in this state any commercial motor vehicle, other than a Florida

    vehicle which travels Florida intrastate mileage only, which uses special fuel or motor fuel until such carrier has registered with the department and

    has been issued an identifying device for each vehicle operated. There shall be a fee of $4 per year or any fraction thereof for each such identifying device issued. The identifying device shall be provided by the department and must be conspicuously displayed

    on the commercial motor vehicle while it is being operated on the public highways of this state. The transfer of an identifying device from one vehicle to another vehicle or from one motor carrier to another motor carrier is prohibited. Unused identifying devices purchased for the year December 1, 1987, through November 30, 1988, may be exchanged for an equal number of identifying devices for the next ensuing reporting period at no charge.

    
    

17. In the absence of display of the "identifying device" required by Section 207.004(1)(a), Florida Statutes, a motor carrier may comply with Section 207.004(4), Florida Statutes, which reads as follows:

    
    

    (4) A motor carrier prior to operating a commercial motor vehicle on the public highways of this state must display an identifying device as required under subsection (1) or must obtain an emergency or trip permit or annual permit for that vehicle. An emergency or trip permit shall expire within 10 days after date of issuance. The cost of an emergency or trip permit shall be $45, which shall exempt the vehicle from the payment of the motor fuel or special fuel tax imposed

    under this chapter during the term for which the permit is valid. However, the vehicle shall not be exempt from paying the fuel tax at the pump.

    
    

18. Assessment of a penalty upon discovery of noncompliance with requirements of Section 207.004, Florida Statutes, is provided by Section 316.545(4)(a)and (b), Florida Statutes, which, in pertinent part, reads as follows:

    
    

    (4)(a) No commercial vehicle . . . shall be operated over the highways of this state unless

    it has been properly registered under the provisions of s. 207.004. Whenever any law enforcement officer

    . . . upon inspecting the vehicle or combination of vehicles, determines that the vehicle is in violation of s. 207.004, a penalty in the amount of $50 shall be assessed, and the vehicle shall be detained until payment is collected by the law enforcement officer.

    (b) In addition to the penalty provided for in paragraph (a), the vehicle may be detained until the

    owner or operator of the vehicle furnishes evidence that the vehicle has been properly registered pursuant to s. 207.004. Any officer or agent of the Department of Transportation may issue an emergency or trip permit and collect the appropriate fee as provided for in s.

    207.004(4). Notwithstanding the provisions of subsection (6), all permit fees collected pursuant to this paragraph shall be transferred to the Department of Highway Safety and Motor Vehicles to be allocated pursuant to s. 207.026.

    
    

19. The proof establishes the propriety of the civil penalty assessed against Respondent on each occasion and the subsequent affirmation of those penalties by the Commercial Motor Vehicle Review Board.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered confirming the imposition of two civil penalties of $50 each upon Respondent and affirming Respondent's two payments of $45 for the two fuel use permits received in conjunction with the assessment of the civil penalties.

DONE AND ENTERED this 16th day of October, 1991, in Tallahassee, Leon County, Florida.

DON W.DAVIS

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 16th day of October, 1991.

Copies furnished:

Jay O. Barber, Esq. Department Of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450

Kenneth R. Koozer

5469 Riverbluff Circle

Sarasota, FL 34231

General Counsel

Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0450

Ben G. Watts Secretary

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: 91-004953

Orders for Case No: 91-004953