STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE No. 91-5770

)

GENE HYDE TRUCKING CO., )

)

)

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., Esq.

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

Tallahassee, Florida 32399-0458 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether the penalties assessed against Respondent by Petitioner in the amount of $336.00, for allowing its vehicle to be operated with a load which exceeds the permissible gross weight, were proper.

PRELIMINARY STATEMENT

On June 2, 1991, Petitioner, Department of Transportation, assessed a penalty against Respondent, Gene Hyde Trucking Co. for its agents operating a vehicle with a gross weight over 500 pounds on the extension bridge of its vehicle in the amount of $250.00. Also, on March 31, 1991, Petitioner's agent assessed a penalty of $62.00 against Respondent's driver for operating a vehicle which was 1240 pounds over the maximum allowable weight on four axles and on June 22, 1991, Petitioner assessed a $24.00 penalty against Respondent's driver for operating a vehicle which was 480 pounds over the maximum allowable weight on five axles. By letter dated August 14, 1991, Petitioner advised Respondent of its administrative review and denial of its refund request and advised Respondent that pursuant to Rule 14A-1.012, Florida Administrative Code, it could request a rehearing or it could request a formal hearing pursuant to Section 120.57(1), Florida Statutes. On August 24, 1991, Respondent timely requested a formal hearing and on September 6, 1991, the matter was transferred to the Division of Administrative Hearings for the assignment of a hearing

officer. On October 3, 1991, the matter was scheduled for hearing for October 17, 1991 but was rescheduled on October 15, 1991 for hearing to be held on December 5, 1991. At the hearing, Petitioner presented the testimony of its employees Donna Edwards, W.M. Daniels and Robert J. Avery. Petitioner's exhibits 1, 2 and 3 were offered and received in evidence at the hearing.

Official notice was taken of Chapter 316, Florida Statutes and Rule Chapter 14, Section 26, Florida Administrative Code. Respondent telephoned Petitioner's agent, Vernon L. Whittier, at the hearing and advised that Respondent would not appear to contest the assessment.

FINDINGS OF FACT

1. Donna Edwards, W.M. Daniels and Robert J. Avery are employees of Petitioner, Florida Department of Transportation, motor carrier compliance section. While so employed on June 22, 1991, Ms. Edwards issued a load report and field receipt to Respondent's driver, Rick Benafield, who was operating a truck owned by Respondent. Ms. Edwards measured and weighed the truck. The weight was 80,480 pounds and the maximum permissible weight for the truck which was 51 plus feet long, is 80,000 pounds.

   
   

2. Ms. Edwards assessed Respondent's driver (Benafield) a penalty of

   $24.00 for being 480 pounds over the maximum allowable weight.

   
   

3. On March 31, 1991, Petitioner's employee, W. M. Daniels, measured and weighed a vehicle owned by Respondent. The weight of the vehicle was 80,740 pounds and the bridge weight was 70,740 pounds. The legal maximum allowable weight for the bridge section of the subject vehicle is 69,500 pounds. As a result of being 1,240 pounds overweight in the bridge section, employee Daniels assessed a penalty of $62.00 against Respondent's driver (Benafield).

   
   

4. On June 2, 1991, while on official duty, employee Avery issued a load report and field receipt to Respondent's driver, Rick Benafield, and assessed a

   $250.00 civil penalty for operating a vehicle which was 5,000 pounds over the gross allowable weight of 80,000 pounds on the extension bridge section of the vehicle. The gross weight of the vehicle was 85,000 pounds and the maximum allowable weight was 80,000 pounds.

   
   

5. Employees Edwards, Daniels and Avery used standard operating procedures in weighing Respondent's vehicles. Petitioner's scales are tested and certified for accuracy semi-annually in accordance with its rules and regulations.

   
   

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

   
   

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

   
   

9. Petitioner's employees Donna Edwards, W. M. Daniels, and Robert J. Avery correctly assessed penalties against Respondent's driver, Rick Benafield, in the gross amount of $336.00 for operating Respondent's vehicle which was

exceeding the maximum allowable gross weight pursuant to Section 316.545, Florida Statutes.

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 $336.00 civil penalty assessed its driver, Rick Benafield.

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, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1992.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esq. Department of Transportation 605 Suwannee Street, MS 58

Tallahassee, FL 32399-0458

James R. Benafield Gene Hyde Trucking Co. 3315 Swindell Road

Lakeland, FL 33809

Ben G. Watts, Secretary ATTN: Eleanor F. Turner 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: 91-005770

Orders for Case No: 91-005770