STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

)

Petitioner, )

)

vs. ) CASE No. 91-5768

)

SUNBELT SALES & RENTALS, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on December 5, 1991 in Tampa, Florida.

APPEARANCES

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

Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether or not Petitioner correctly assessed a penalty against the Respondent in the amount of $585.00 on May 6, 1991. 1/

PRELIMINARY STATEMENT

By letter filed with Petitioner, Department of Transportation on August 21, Respondent, Sunbelt Sales and Rentals, Inc., filed a request for a formal hearing pursuant to Section 120.57(1), Florida Statutes, after being administratively denied a refund of an assessment against one of its drivers on May 6. On September 6, the matter was transferred to the Division of Administrative Hearings, and on October 3, the matter was scheduled for hearing for October 17. On October 14, Respondent requested a continuance and the matter was rescheduled on October 15, for hearing for December 5, and was heard as scheduled.

At the hearing, Petitioner presented the testimony of Steve Ward and introduced exhibit 1 which was received in evidence at the hearing.

Administrative notice was taken of Chapter 14, Section 26, Florida Administrative Code and Section 316.545, Florida Statutes.

FINDINGS OF FACT

1. Steve Ward has been employed by Petitioner, Department of Transportation in the motor carrier compliance section for approximately three years. His official duties include, inter alia, weighing trucks, checking license plates, fuel permits and insurance compliance.

   
   

2. On May 6, while working at the official weight station in Old Town, Florida, Steve Ward weighed a truck owned by Respondent which had a gross weight of 91,700 pounds. The load was a "multi-load" which consisted of a crane counter weight and a roll of cable. Respondent's driver presented Ward with a state of Florida "blanket permit". Upon reviewing the permit, Steve Ward advised Respondent's driver that since his truck carried a "multi-load", the blanket permit was ineffective and therefore the maximum load allowed on his vehicle was 80,000 pounds.

   
   

3. Steve Ward completed a load report and field receipt and gave a copy of the report/receipt to Respondent's driver, Pat Wheeler. Respondent was assessed a $585.00 penalty for operating a vehicle with a load 11,700 pounds over the 80,000 pound maximum load limit.

   
   

4. Steve Ward followed the standard procedures in weighing Respondent's vehicle. The weight scales at the Old Town Official Station in Dixie County are inspected semi-annually pursuant to Petitioner's rules and regulations.

   
   

5. As stated, Respondent, or a representative on its behalf, failed to appear at the hearing to contest the penalty assessed against its driver, Pat Wheeler, on May 6.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

   
   

8. The authority of the Petitioner is derived from Chapter 316, Florida Statutes.

   
   

9. Section 316.545(1), Florida Statutes authorizes Petitioner and/or its agents to require a driver to stop and submit to a weighing of a vehicle that it believes is unlawful.

   
   

10. Petitioner's agents properly weighed Respondent's vehicle and assessed a $585.00 penalty pursuant to Section 316.545, Florida Statutes for operating a vehicle in violation of the allowable maximum weight.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner enter a Final Order denying Respondent's request for a refund of the penalty assessed against it on May 6, 1991 in the amount of $585.00.

DONE and ENTERED this 14th day of January, 1992, in Tallahassee, Florida.

JAMES E. BRADWELL

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 14th day of January, 1992.

ENDNOTES

1/ Unless otherwise indicated, all dates are in 1991.

COPIES FURNISHED:

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

605 Suwannee Street, M.S. 58

Tallahassee, FL 32399-0458

D. E. Granowicz, President Sunbelt Sales & Rentals, Inc.

P.O. Box 310007 Tampa, FL 33680

Ben G. Watts, Secretary ATTN: Eleanor F. Hunter Department of Transportation Haydon Burns Building

605 Suwanee 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. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN 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: 91-005768

Orders for Case No: 91-005768