STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7370

)

GENERAL DEVELOPMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in this case was held pursuant to

notice on January 28, 1992, in Tallahassee, Florida, by Stephen

1. Dean assigned Hearing Officer of the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: Vernon L. Whittier, Jr.

   Assistant General Counsel Florida Department of Transportation

   605 Suwannee Street, M.S. 58

   Tallahassee, Florida 32399-0458

   
   

   For Respondent: Ray Campbell, Secretary

   General Development Post Office Box 654 Quincy, Florida 32351

   
   

   ISSUES

   
   

   Did the Respondent operate an unregistered commercial truck in Florida?

   
   

   Did the Petitioner correctly assess a penalty of $1,250 pursuant to Section 316.545, Florida Statutes, regulating operation of a commercial vehicle on a highway in the State of Florida?

   
   

   PRELIMINARY STATEMENT

   
   

   Officers of the DOT stopped Respondent's Truck for operating in Florida without a proper tag. The driver could not produce a proper registration for the truck. Eventually, the Respondent's agent produced a Georgia non-apportioned registration and tag. The officers determined the truck did not have a regular Florida registration. The truck weighed 60,000

   pounds. A penalty of $1,250 was assessed against the Respondent, which paid the penalty. The Respondent was advised if its right

   to a hearing on the matter, and filed timely a request for hearing with DOT which referred it to the Division of Administrative Hearings.

   
   

   At hearing, DOT called the officers who had originally handled the case, and introduced the Load Report which they had prepared. The Respondent's agent was determined at hearing to be authorized and qualified to represent the Respondent.

   
   

   The Petitioner filed a proposed finding of fact which was read, considered, and adopted.

   
   

   FINDINGS OF FACT

   
   

   1. On June 27, 1991, Sergeant Tommy Jackson, observed

      a dump truck traveling eastward on 65C in Gadsden County, Florida. The Sergeant stopped the truck which did not have a tag. The driver of the truck, which did not have a name on it, was asked for the registration. The driver could not produce the registration.

      
      

   2. Sergeant Jackson called Officer Bennie Lee York,

      Jr., to come assist him in weighing the dump truck on portable scales. The vehicle weighed 60,000 pounds.

      
      

   3. The vehicle's serial number was checked through the Florida Division of Motor Vehicle's computer which determined the vehicle had no Florida tag or registration.

      
      

   4. Sergeant Jackson and Officer York went to the job

      site to which the truck was bound to verify the tag and registration of the vehicle. A Georgia registration and incorrect tag was presented.

      
      

   5. Sergeant Jackson went to his nearby home to call

      and verify the registration with the Georgia authorities in Atlanta, Georgia. Georgia reported no record of a tag for the vehicle in the State of Georgia.

      
      

   6. Sergeant Jackson returned to the job site and advised the job foreman that the State of Georgia did not report the vehicle as being registered in Georgia.

      
      

   7. About two hours later, Mr. Kinard of General Development brought a registration that matched the truck serial number. However, it was for a non-apportioned Georgia commercial tag.

      
      

   8. Officer York advised Mr. Kinard that an apportioned International Registration Plan tag or a Florida Commercial registration was required to operate a commercial vehicle in Florida.

   9. Officer York issued a load report to General Development assessing a penalty for being 25,000 pounds over the legal limit in the State of Florida of 35,000 for a commercial vehicle. The amount of the penalty was $1,250.00, or 5 cents for every pound of vehicle weight over 35,000 pounds.

      
      

   10. The Respondent admitted the violation, however,

       the Respondent's representative indicated in his plea for mitigation that the driver had taken the truck without authorization.

       
       

   11. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   13. The Department of Transportation has authority to enforce ". . . the provisions of weight, load, safety, commercial motor vehicle registration and fuel tax compliance laws.

       and levy fines for violation thereof pursuant to Section 316.545, Florida Statutes.

       
       

   14. Section 320.02, Florida Statutes, provides in part:

       
       

       1. Except as otherwise provided in this chapter, every owner or person in charge of a motor vehicle which is operated or driven on the roads of this state shall register the vehicle in this state. .

          
          

   15. Section 320.0715, Florida Statutes, provides for registration of commercial motor vehicles, engaged in interstate commerce under the International Registration Plan.

       
       

   16. Section 316.545, Florida Statutes, provides in part:

       
       

       (b) . . . In those cases when the commercial vehicle, as defined in s. 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 5 cents per pound on that weight which exceeds 35,000 pounds. .

       
       

   17. A commercial motor vehicle owned by General Development was observed operating on a highway in the State of Florida without a tag on June 27, 1991. The vehicle was stopped by a Motor Carrier Compliance Officer who checked registration on

       the Florida vehicle computer and with the State of Georgia. The officer was advised that the truck was not registered in either state. Subsequently, General Development produced a registration showing the vehicle was registered in Georgia; however, it was a non-apportioned registration.

       
       

   18. A commercial motor vehicle operating in the State of Florida must be registered with a Florida non-apportioned

       plate or be registered with an apportioned registration under the International Registration Plan under the applicable provisions of Chapter 320, Florida Statutes.

       
       

   19. On the date of the violation, General Development's vehicle was not registered in the State of Florida or under the International Registration Plan.

       
       

   20. The vehicle weighed 60,000 pounds. As provided in Section 316.545, Florida Statutes, a penalty of 5 cents per pound for each pound of vehicle weight in excess of 35,000 was assessed against General Development. The vehicle was 25,000 pounds over 60,000 pounds resulting in a penalty of $1,250.00.

       
       

   21. The penalty was correctly assessed against General Development pursuant to Section 316.545, Florida Statutes, for operating a vehicle on the highways of this state without being registered under the applicable provisions of Chapter 320, Florida Statutes.

       
       

   22. The misuse of the truck by the company's driver is not an excuse or mitigation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered finalizing assessment of the $1,250.00 penalty assessed against General Development pursuant to Section 316.545, Florida Statutes.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February 1992.

STEPHEN F. DEAN

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 26th day of February 1992.

COPIES FURNISHED:

Vernon L. Whittier, Jr. Assistant General Counsel

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

Tallahassee, Florida 32399-0458

Ray Campbell, Secretary General Development Post Office Box 654 Quincy, Florida 32351

Ben G. Watts Secretary

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

Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner

Thornton J. Williams General Counsel

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 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: 91-007370

Orders for Case No: 91-007370