STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0578

)

DOUGLAS & SONS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in this case was held in Tallahassee, Florida, by telephone conference, pursuant to notice on March 6, 1992, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

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

Assistant General Counsel

Florida Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0458

For Respondent: Ms. Patricia M. Lloyd

Douglas & Sons, Inc. Route 5, Box 238

Statesville, NC 28677 PRELIMINARY STATEMENT

This cause arose from a fee and penalty totaling $95.00 levied by the Department for violation of Sections 207.004 and 316.545, Florida Statutes, for operating a commercial vehicle on a public highway in the State of Florida for not displaying a proper fuel use tax device. Because of the small amount of money involved and the out-of-state location of Respondent, the hearing was conducted by telephone conference. At the hearing, the Petitioner entered two exhibits, and the Respondent entered one exhibit. The Petitioner filed a Proposed Recommended Order which was read and considered. All of the findings proposed by Petitioner were adopted.

FINDINGS OF FACT

1. On November 18, 1991, Douglas & Sons, Inc. was operating a commercial vehicle on SR 9 (1-95) when it stopped at a Department of Transportation weigh station in Flagler Beach, Florida. The vehicle was checked by a DOT inspector who determined that the vehicle displayed a Florida decal outside the truck, but that the identification number on the fuel use cab card in the truck varied by one digit from the vehicle identification number on the North Carolina apportioned license registration.

2. The DOT inspector issued a temporary fuel use permit for a $45.00 fee, which he collected to allow the vehicle to proceed on its way; and he collected a $50.00 civil penalty for violation of Chapter 207, Florida Statutes, as provided in Section 316.545(4), Florida Statutes.

   
   

3. The Respondent produced evidence that the owner of the vehicle had purchased and returned six fuel use cards, which the Respondent did not use. These cards consist of a decal displayed on the outside of the truck and a card which is carried in the truck. Patricia Lloyd stated that the fuel use card in the inspected vehicle had the wrong vehicle identification number typed in by a clerk in the Respondent's office. The Respondent showed, by introducing the unused fuel use cards, that it had not attempted to violate the statute prohibiting switching fuel use cards between two vehicles.

   
   

4. The fuel use cards are ordered by owners of out-of-state commercial vehicles who are responsible for filling out the cards with the vehicles' identification numbers. The fuel use cards may be bought in any quantity. The cost is $4.00 per card per year. The owner is statutorily responsible for the proper use of the card, and transfer of the card is prohibited.

   
   

   CONCLUSIONS OF LAW

   
   

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

6. Section 207.004, Florida Statutes, provides in part: (1)(a) No motor carrier shall operate

   or cause to be operated in this state any commercial motor vehicle, other than a Florida-based commercial motor vehicle which travels Florida intrastate mileage only, 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. There shall be a fee of $4 per year or any fraction thereof for each such identifying device issued. 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. The transfer of an identifying device from one vehicle to another vehicle or from one motor carrier to another motor carrier is prohibited. . . .

   
   

   (b) The motor carrier to whom an identifying device has been issued shall be solely responsible for the proper use of the identifying device by its employees, consignees, or lessees.

   * * *

   
   

   (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. An emergency or trip permit shall expire within 10 days after date of issuance. The cost of an emergency or trip permit shall be $45, which shall exempt the vehicle from the payment of the motor fuel or special fuel tax imposed under this chapter during the term for which the permit is valid. However, the vehicle shall not be exempt from paying the fuel tax at the pump.

7. Section 316.545, Florida Statutes, provides in part: (4)(a) No commercial vehicle, as defined in

   s. 316.003(66), 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 or combination of vehicles, determines that the vehicle is in violation of s. 207.004, a penalty in the amount of $50 shall be assessed, and the vehicle shall be detained until payment is collected by the law enforcement officer.

   
   

   (b) In addition to the penalty provided for in paragraph (a), the vehicle may be detained until the owner or operator of the vehicle furnishes evidence that the vehicle has been properly registered pursuant to s.

   207.004. 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). Notwithstanding the provisions of subsection (6), all permit fees collected pursuant to this paragraph shall be transferred to the Department of Highway Safety and Motor Vehicles to be allocated pursuant to s. 207.026.

   
   

8. Douglas & Sons, Inc. operated a commercial vehicle on SR 9 (I-95) in Flagler Beach, Florida, and displayed a fuel use decal on the truck and carried a fuel use card in the truck. The vehicle identification number on the fuel use tax cab card varied by one digit from the vehicle identification number on the vehicle's license registration.

9. Vehicle owners order the fuel use cards in blank and are responsible for entering vehicle identification numbers on the fuel use cards. Section 207.004(1)(a), Florida Statutes, prohibits transferring the identifying device from one vehicle to another. Section 207.004(1)(b), supra., makes the vehicle's owner solely responsible for the proper use of the registration device. The Petitioner argues that the clerical failure of the owner to properly enter the vehicle registration number constitutes "failure to display" and "improper use" of the card, and is a violation of Section 297.004(1)(a) and (b), supra.

   
   

10. Unlike the recent case in which a driver brought an unregistered commercial truck into Florida, in this instance, the owner attempted to comply with the applicable statute by purchasing the required fuel use card and displaying it on the vehicle. Although the vehicle's owner had entered the wrong vehicle identification number on the fuel use card, it demonstrated that this was a typographical error and that it was not "switching" $4.00 fuel use cards because the Respondent had extra, unused fuel use cards, which it returned at the end of the year. If it had six extra cards, the Respondent was not switching cards between vehicles and improperly using the card.

    
    

11. The statute does not specifically state what "proper use" or "improper use" of the card is. The statute requires registration of the vehicle, purchase and display of a fuel use card, and prohibits transfer of these cards. The Petitioner's argument that the incorrect vehicle identification number is improper display and improper use of the card creates a statutory prohibition where none exists. The Petitioner's argument creates an irrebuttable presumption that the vehicle's owner is improperly transferring the card. An executive agency cannot create such a presumption. See McDonald v. Department of Professional Regulation, 582 So.2d 660 (1st DCA 1991). The Petitioner cites no statutory or case law authority for this presumption.

    
    

12. The Respondent has shown that the fuel use card displayed varied by one digit as the result of a clerical error and that it was not attempting to avoid proper registration by transferring fuel use cards between vehicles, which is prohibited. Having demonstrated that it purchased and displayed the fuel use card, as required by statute, the $50.00 fine and $45.00 temporary use fees should be remitted to the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the penalty of $50.00 and the $45.00 be remitted to the

Respondent.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 3 day of April, 1992.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

COPIES FURNISHED:

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

Filed with the Clerk of the Division of Administrative Hearings this 3 day of April, 1992.

Florida Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0458

Ms. Patricia M. Lloyd Douglas & Sons, Inc. Route 5, Box 238

Statesville, NC 28677

Ben G. Watts Secretary

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

Tallahassee, FL 32399-0458 Attn: Eleanor F. Turner

Thornton J. Williams, Esq. General Counsel

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

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 deadlines 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: 92-000578

Orders for Case No: 92-000578