STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, ) DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5181

)

SOUTHERN SALVAGE COMPANY, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on November 1, 1991 a formal hearing was held in this case. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Tallahassee, Florida. Charles C. Adams served as the Hearing Officer.

APPEARANCES

For Petitioner: Vernon L. Whittier, Esquire

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

Tallahassee, FL 32399-0458

For Respondent: Henry B. Jernigan (Owner)

Southern Salvage Company, Inc. Route 2, Box 210

Lenox, GA 31637 STATEMENT OF THE ISSUES

The issues concern the Petitioner's assessment of a penalty in the amount of $1,746.00 for an alleged violation of Section 316.545(2)(b), Florida Statutes, in that Respondent's vehicle was said to be operating over the highways of this state without a registration for Florida or any other jurisdiction and is thereby subject to a penalty in the amount of $.05 per pound of the weight which exceeds 35,000 pounds in that vehicle.

PRELIMINARY STATEMENT

Having been cited for operating a commercial vehicle in Florida without benefit of a valid registration and assessed a fine in the amount of $1,746.00, Respondent was afforded the opportunity to contest that assessment by resort to a formal hearing. That request was made and the hearing conducted on the date described.

At hearing Petitioner presented the testimony of Lieutenant Donald B. Spradley and two exhibits by Petitioner were admitted. Henry B. Jernigan testified for Respondent and two exhibits by Respondent were admitted.

A transcript was prepared and filed with the Division of Administrative Hearings on November 12, 1991. Within the time prescribed Petitioner has offered a proposed recommended order. Respondent has not. The proposed fact finding set forth in the Petitioner's submission is addressed in an appendix to the recommended order.

FINDINGS OF FACT

1. On June 6, 1991 a commercial vehicle owned by the Respondent was operating over a highway in the State of Florida. That highway is Interstate 75 in Hamilton County, Florida. An inspection was made by the Petitioner and it was revealed that the registration available with the vehicle did not pertain to the vehicle. A valid registration of a temporary or permanent nature which was associated with the vehicle was not presented at that time. There being no valid registration for the vehicle a fine in the amount of $1,746.00 was assessed in that the owner was charged $.05 per pound for the amount over 35,000 pounds, subtracted from the gross weight of 69,920 pounds.

   
   

2. In explanation at hearing Henry Jernigan who owns Southern Salvage Company, Inc. admitted that the vehicle in question had left Respondent's facility with a Georgia tag that belonged to another truck owned by Respondent. Further Mr. Jernigan admitted that when the Florida officials stopped the truck in question it had the wrong tag displayed. The tag pertaining to another vehicle had been placed on the vehicle in question by mistake. Concerning the appropriate indication of registration on the subject truck, steps necessary to purchase a tag had been started in Colquitt County, Georgia on April 26, 1991. This was followed by money paid to the Georgia Department of Revenue on May 28, 1991 for the IRP which signifies permanent registration but the permanent tag was not received immediately. That is to say confirmation of that permanent registration by officials with the Georgia Department of Revenue had not been made when the vehicle was stopped. Meaning the Respondent had not received a copy of the permanent registration when the vehicle was stopped. The permanent registration was finally received by the Respondent sometime around June 20, 1991.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

4. Section 316.545(2)(b), Florida Statutes states the following:

   
   

   . . . in those cases when the commercial vehicle, as defined in 2s. 316.003(66), is being operated over the highways of the state with an expired registration or with no

   registration from this or any other jurisdiction

   or is not registered under the applicable provisions of Chapter 320, the penalty herein shall apply on the basis of $.05 per pound on the weight which exceeds 35,000. . . .

5. As found in the facts the vehicle in question was operating in Florida without a valid registration from any jurisdiction. It weighed 69,920 pounds. Thus, the Petitioner was entitled to assess a penalty in the amount of

$1,746.00. Although Respondent had pursued the necessary arrangements to appropriately register the vehicle in Georgia, those arrangements had not been concluded by having issued to the vehicle a temporary or permanent registration before operating on a Florida highway. Neither is the explanation that the tag from another vehicle had been placed on the vehicle in question as part of the activities prior to dispatching the vehicle in question a valid excuse for this violation.

RECOMMENDATION

Having considered the facts found and conclusions of law reached, it is RECOMMENDED:

That a final order be entered assessing a fine in the amount of $1,746.00 for this violation.

DONE and ENTERED this 10th day of December, 1991, in Tallahassee, Florida.

CHARLES C. ADAMS

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 10th day of December, 1991.

APPENDIX

The following discussion is given concerning the proposed facts of the Petitioner:

Paragraph 1 is subordinate to facts found.

Paragraph 2 in its first two sentences are hearsay, not available for fact finding. The third sentence is not necessary to the resolution of the dispute.

The next sentences are subordinate to facts found.

The last two sentences are hearsay and not available for fact finding.

Copies furnished to:

Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, FL 32399-0458

Henry Jernigan

Southern Salvage Company, Inc. Route 2, Box 210

Lenox, GA 31637

Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building 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. 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: 91-005181

Orders for Case No: 91-005181