STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7234

) ATLANTIC GULF MARINE TRANSPORT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on January 6, 1992, in Tallahassee, Florida.

APPEARANCES

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

Assistant General Counsel 605 Suwannee Street, M.S. 58

Tallahassee, Florida 23399-0458 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether the fee and penalty totaling $95.00 assessed against Atlantic Gulf Marine Transport by the Florida Department of Transportation should be sustained.

PRELIMINARY STATEMENT

On April 11, 1990, a compliance officer employed by Respondent issued a temporary fuel use permit and assessed a penalty against one of Petitioner's commercial vehicles. The fee for the temporary fuel use permit was $45.00 and the amount of the penalty was $50.00. Petitioner protested the assessment of the fee and penalty, and this proceeding followed.

No appearance was made at the formal hearing by Petitioner, although notice of hearing was duly provided on December 19, 1991. Counsel for Respondent represented that he had made efforts to contact Petitioner, but that he had been advised that Petitioner's place of business had been abandoned and its telephones disconnected.

At the formal hearing, Respondent presented the testimony of Mr. Ken Carr, an employee of Respondent who is the Supervisor of Respondent's Tallahassee Field Office. Respondent submitted one exhibit, which was accepted into evidence.

No transcript of the proceedings has been filed. Petitioner did not file a post-hearing submittal. The proposed findings of fact submitted by the Florida Department of Transportation are adopted in material part by the Recommended Order.

FINDINGS OF FACT

1. Respondent, Atlantic Gulf Transport, operated a commercial vehicle on State Road 84 in Broward County, Florida, on April 11, 1990, when it was stopped by a Motor Carrier Compliance Officer (Compliance Officer) employed by Respondent. The subject vehicle was not displaying a fuel use tax device for its interstate operations as required by Section 207.004, Florida Statutes, and the driver did not present any fuel use tax registration documentation. The Compliance Officer issued a temporary fuel use permit as authorized by Section 207.004(4), Florida Statutes. The fee for the permit was $45.00. The Compliance Officer also assessed a civil penalty for the violation of Chapter 207, Florida Statutes, as authorized by Section 316.545(4), Florida Statutes. The amount of the civil penalty was $50.00.

   
   

2. Petitioner established a prima facie case that the assessment of the fee and penalty were authorized by pertinent statute. Respondent made no appearance at the formal hearing and introduced no evidence to rebut this prima facie showing.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

4. Section 207.004, Florida Statutes, provides, in pertinent part, as follows:

   
   

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

   
   

   * * *

   
   

   (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... The cost of an emergency or trip permit shall be $45 ....

   
   

5. Section 316.545, Florida Statutes, provides, in pertinent part, 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 identified in s.

   207.023(1), upon inspecting the vehicle ... determines that the vehicle is in violation of s. 207.004, a penalty in the amount of $50 shall be assessed ...

   (b) ... 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)....

   
   

6. Section 207.023(2), Florida Statutes, provides, in pertinent part, as follows:

(2) The ... Department of Transportation, and their deputies, agents, and employees may assess the penalty imposed in s. 316.545(4) for violations of s. 207.004(4) ....

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which upholds the assessment of

the subject fee and penalty.

DONE AND ORDERED this 10th day of February, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 10th day of February, 1992.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Assistant General Counsel

Florida Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

Charles T. O'Neil

Atlantic Gulf Marine Transport

P.O. Box 3304

Lantana, Florida 33462

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458 ATTN: ELEANOR F. TURNER, M.S. 58

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 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: 91-007234

Orders for Case No: 91-007234