STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7312

)

JOSEPH A TINSMAN, III, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on January 28, 1992 in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Charles A. Gardner

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

Tallahassee, Florida 32303

FOR RESPONDENT: Margie Tinsman,

as qualified representative

213 Anderson Drive Brunswick, Georgia 31520

STATEMENT OF THE ISSUE

Whether or not the July 21, 1991 civil penalty imposed against Respondent's truck for weighing more than the weights posted for the bridge at the St. Mary's River on US-17 (SR 5), Nassau County, was correct and properly assessed pursuant to Sections 316.545 and 316.55, F.S.

PRELIMINARY STATEMENT

After inquiry, Margie Tinsman was accepted as qualified representative of the Respondent herein, pursuant to Rule 22I-6.008. F.A.C., provided she filed Respondent's written authorization within 10 days. That authorization having been duly filed, Ms. Tinsman's status as qualified representative is here ratified.

Petitioner, Department of Transportation, presented the oral testimony of David D. Browning and had 4 exhibits admitted in evidence.

Respondent offered 7 exhibits in evidence, all of which were admitted in evidence except for Exhibits R-3 and R-4. Margie Tinsman testified on behalf of Respondent.

A transcript was filed on February 21, 1992. No party filed any post- hearing proposals.

FINDINGS OF FACT

1. On July 21, 1991, the bridge at St. Mary's River on US-17 a/k/a SR 5 in Nassau County, Florida was posted on both sides of the river at 32 tons (64,000 pounds) for a combination truck-tractor semi-trailer. (P-1)

   
   

2. On that date, and in that place, Weight Inspector Harvey L. Vickers stopped Respondent's combination truck-tractor, semi-trailer and subsequently weighed it at the #2 scale at Yulee, Florida. He then issued Load Report 37553K (P-2) to Respondent's driver. In so doing, Inspector Vickers checked a box on the Load Report showing that the vehicle in question was traveling north. However, his more detailed written narrative Case Report described the vehicle as traveling south. (R-3)

   
   

3. Inspector Vickers also filled out the Load Report to show that the vehicle weighed 79,340 pounds and was in excess of the posted legal weight by 15,340 ponds. The appropriate subtraction showing overweight poundage was not originally done by Inspector Vickers in the proper columns or boxes of the Load Report, but Inspector Vickers corrected the Load Report by inserting arrows to show the proper location of the figures. He used the arrows, instead of making erasures, because the Load Report form is on NCR paper which cannot be erased. The weighing and fine were imposed between 7:50 p.m. and 8:25 p.m. on July 21, 1991. The vehicle's weight/overpoundage was calculated out at $.05 per pound for a fine of $767.00.

   
   

4. In this instance, the "carrier" technically was Unit Transportation, but the fine was actually paid by Respondent. Respondent's Bill of Lading (R-2) indicated that the vehicle picked up its shipment in Doraville, Georgia. The load was comprised of paper weighing 44,000 pounds, destination Sanford, Florida. (R-2) Sanford Florida is south of the location where Respondent's truck was stopped and weighed by Inspector Vickers. The logical and reasonable inference therefrom is that the truck was traveling south and had crossed the low-weight bridge prior to the time it was stopped by Inspector Vickers. Also, the vehicle would have had to have been traveling south in order to have already crossed the bridge when stopped by the Florida inspector because the north end of the bridge is in Georgia and the south end of the bridge is in Florida.

   
   

5. On July 2, 1991, the #2 scale which was used by Inspector Vickers on July 21, 1991 to weigh Respondent's truck had been inspected and certified as weighing "light" by 40 pounds. This certification had been done, pursuant to statutory mandate, by the Florida Department of Agriculture. (P-4) Thus, it is probable that Respondent's vehicle actually weighed 40 pounds more than that recorded by Inspector Vickers on his Load Report. 1/

   
   

6. Respondent presented a Brunswick Georgia weight ticket purportedly showing that the vehicle in question had a gross weight of 76,760 pounds 2/ on July 21, 1991 at 5:42 p.m. However, the truck I.D. number on this weight ticket (R-5) did not match that of the unit number on the Load Report (P-2), and there is no direct evidence as to whether or not any weight was added to either truck after that weighing in Brunswick Georgia and before the truck which was penalized crossed the St. Mary's Bridge. There is, therefore, no competent evidence to show that Respondent's truck weighed less than the 79,340 pounds recorded by Inspector Vickers on the Load Report.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

   
   

8. Section 316.555, F.S. provides, in pertinent part:

   
   

   Weight, load, speed limits may be lowered; condition precedent. - Anything in this chapter to the contrary notwithstanding, the Department of Transportation with respect to state roads, and local authorities with respect to highways under their jurisdiction, may prescribe, by notice hereinafter provided for, loads and weights and speed limits lower than the limits prescribed in this chapter and other laws, whenever in its or their judgment any road or part thereof or any bridge or culvert shall, by reason of its

   design, deterioration, rain, or other climatic or natural causes be liable to be damaged or destroyed by motor vehicles, trailers, or semitrailers, if the gross weight or speed limit thereof shall exceed the limits prescribed in said notice. The Department of Transportation or local authority may, by like notice, regulate or prohibit, in whole or in part, the operation of any specified class or size of motor vehicles, trailers, or semitrailers on any highways or specified parts thereof under its or their jurisdiction, whenever in its or their judgment, such regulation or prohibition is necessary to provide for the public safety and convenience on the highways, or parts thereof, by reason of traffic density, intensive use thereof by the traveling public, or other reasons of public safety and convenience. The notice or the substance thereof shall be posted at conspicuous places at terminals of all intermediate crossroads and road junctions with the section of highway to which the notice shall apply. After any such notice

   has been posted, the operation of any motor vehicle or combination contrary to its provisions shall constitute a violation this chapter. . . .

   
   

9. Section 316.545 provides, in pertinent part:

   
   

   Weight and load unlawful; special fuel and motor fuel tax enforcement; inspection; penalty; review -

   1. Any weight and safety officer of the Department of Transportation having reason to believe that the weight of a vehicle and load

      is unlawful is authorized to require the driver to stop and submit to a weighing of the same by means of either portable or fixed scales and may require that such vehicle be

      driven to the nearest weight station or public scales, provided such a facility is within 5 highway miles. . . .

      * * *

      (3) Any person who violates the overloading provisions of this chapter shall be conclusively presumed to have damaged the highways of this state by reason of such overloading, which damage is hereby fixed as follows:

      * * *

      (b) Five cents per pound for each pound of weight in excess of the maximum herein provided when the excess weight exceeds 200 pounds. . . .

      
      

10. The Department of Transportation established that Respondent's truck was in excess of the posted low limit weight by 15,340 pounds when it went across the bridge at St. Mary's River on US-17 (SR-5), Nassau County, on July 21, 1991, and that the penalty of $767 assessed was legally and mathematically correct pursuant to the foregoing statutes.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the penalty of $767.00 was correctly assessed against Respondent pursuant to the provisions of Sections

316.545 and 316.555, F.S. and that since Respondent has already paid his fine, nothing else is owed between the parties.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of March, 1992.

ELLA JANE P. DAVIS, 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 17th day of March, 1992.

ENDNOTES

1/ It is noted that if the Respondent had not been given the benefit of the doubt, the $767 fine could have been increased an additional $2.00.

2/ It is noted that if this figure were to be believed, the Respondent's truck would still have been overweight by 12,760 pounds and thus subject to a fine of

$638.00.

COPIES FURNISHED:

Charles A. Gardner Assistant General Counse;

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Margie Tinsman

213 Anderson Drive Brunswick, Georgia 31520

Thorton J. Williams General Counsel

Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary ATTN; Eleanor F. Turner Department of Transportation

Haydon Burns Building, M.S. 58 605 Suwannee Street

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 consult with the agency that will issue the final order in this case concerning agency rules on the dealine 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: 91-007312

Orders for Case No: 91-007312