STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1870

)

DELTA BUILDING SUPPLIES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Miami, Florida on June 24, 1992 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

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

Department of Transportation 605 Suwanee Street, MS - 58

Tallahassee, FL 32399-0450

For the Respondent: Timothy A. Czencz, Pers. Rep.

Delta Building Supplies 12951 S.W. 124th Street Miami, FL 33186

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether the Respondent violated the weight limitations for truck traffic over a low limit bridge on SR 850 in Palm Beach County, Florida on November 12, 1991, and if so, what is the appropriate penalty.

PRELIMINARY MATTERS

On November 12, 1991, Respondent, Delta Building supplies, (Delta), was issued a citation for operating a truck over a low limit bridge in Palm Beach County, Florida, which truck exceeded the weight limit for the bridge, and was assessed a civil penalty. By letter dated February 6, 1992, Delta requested a formal hearing to contest the amount of the civil fine and on March 24, 1992, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. By Notice of Hearing dated may 4, 1992, entered after response to the Initial Order entered herein, the matter was set for hearing in Miami on June 24, 1992 by Hearing Officer William J. Kendrick, at which time it was held by the undersigned to whom it had been transferred in the interim.

At the hearing, Petitioner presented the testimony of Roy B. Neff, a weight and vehicle registration enforcement officer with the Department's Office of

Motor Carrier Compliance, and introduced Petitioner's Exhibits 1 and 2. Respondent presented the testimony of Timothy A Czencz, its operations manager, and introduced Respondent's Exhibits A through C.

No transcript was provided but subsequent to the hearing, Petitioner's counsel submitted Proposed Findings of Fact which have been approved and are incorporated in this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was the state agency responsible for enforcing the state statutes involving commercial carrier weight compliance in this state which it does through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to cite drivers and owners of commercial vehicles which violate the load limits on the streets and highways of this state.

   
   

2. On November 12, 1991, at approximately 2:30 PM, Officer Roy Neff stopped the Respondent's open board truck for crossing the low limit bridge located on State Road 850 in North Palm Beach, Florida, while apparently overloaded. The truck was carrying a load of drywall sheets and stucco. Officer Neff weighed the vehicle with the Department's portable scales he carried with him. These scales are calibrated for accuracy every 6 months. He utilized the standard Department weighing procedure which calls for a weight under each axle combined to give a total vehicle weight. This vehicle weighed 68,000 pounds loaded, according to this procedure used.

   
   

3. Because this particular bridge was allowed no more than 26 tons, (52,000 pounds), of weight for a vehicle in this category, (non-trailer with 2 axles), Officer Neff cited the Respondent's driver for an overweight of 16,000 pounds. Since overweight is penalized at 5 per pound, the penalty assessed was

   $800.00.

   
   

4. The approach to this bridge was clearly marked at several locations with signs indicating the maximum weight permitted for this bridge was 26 tons. These signs were located at sites which were far enough away from the bridge (1 mile and 1/2 mile) to give a driver ample opportunity to turn around or to take an alternate route to his destination on roads situated between the signs and the bridge.

   
   

5. When the citation was issued here, the driver posted an acceptable bond and the vehicle was released.

   
   

6. Respondent does not deny its vehicle as loaded exceeded the state's weight limitations for this bridge. However, it contends that the amount of overweight was less than that determined by officer Ness and it therefore overpaid the penalty by $252.30. Respondent bases this calculation on what it claims was the load on the truck at the time, multiplied by the weight per piece as provided by the manufacture of the product. In support of its claim, Respondent offered a handwritten, self-made list of weights purportedly taken from manufacturer furnished documents. These weights are then utilized in a computation of total load weight based on another handwritten list of materials, reportedly on the truck at the time, which was reconstructed from the delivery ticket for that trip approximately one week or so after the citation was issued. The weakness of this evidence is compounded by the fact that there is no weight in the "manufacturer's" list for the 30 sheets of 14 foot long drywall which

   Respondent claims weigh a total of 4,284 pounds. There is also no source for the 6,000 pounds of stucco. Presumably, the "75 stucco" relates to 75 bags at

   80 pounds per bag.

   
   

7. No doubt Respondent's protestations of overpayment are honestly made and made with good intentions. However, its evidence in support of its claim does not outweigh the evidence that the Department scales used to conduct the inspection here were calibrated for accuracy every 6 months. There is no evidence to indicate either that they were not accurate when used or that the weighing procedures followed were improper.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Under the provisions of Section 316.545, Florida Statutes, the Department of Transportation is given the authority to enforce the weight, load, safety, registration and fuel tax compliance laws of this state relating to commercial carriers operated on the roads and highways of this state and to assess and levy fines for the violation thereof.

   
   

10. The Department has also been granted the authority, under Section 316.555, Florida Statutes, to prescribe for loads and weights and speed limits on the roads and highways under state jurisdiction whenever, in its judgement, and road, bridge or culvert shall, because of its design or condition, be liable to be damaged by motor vehicles of a weight in excess of those load, weight or speed limits. Under this provision, as a predicate to such enforcement action, the Department must post a notice as to the pertinent limits in a conspicuous place at terminals of intermediate cross roads and junctions with that portion of the highway. Once such notice had been placed, it is a violation to operate an excessively loaded or weighted vehicle over such road portion.

    
    

11. Damage to the roadway, bridge or culvert is presumed by a violation of such limit and is fixed by statute, Section 316.545(3)(2), Florida Statutes, at

    5 per pound of overweight when the excess exceeds 200 pounds.

    
    

12. Here, Respondent operated its vehicle, weighed at 68,000 pounds, over a bridge, the maximum weight for which was set and posted as 26 tons, (52,000 pounds). Respondent does not deny its vehicle was overweight but disputes only the extent of that overweight. In doing so, it relies on handwritten weights per item on the load reconstructed several days after the incident from a load ticket which did not, in fact, refer to the weight of one of the carried items. Opposing this is the Department's evidence that the vehicle had been weighed by portable scales which are periodically calibrated for accuracy. Absent any evidence to indicate the scales were not accurate, the state of the evidence is sufficient to carry the Department's burden of proof to show, by a preponderance of the evidence, that the violation occurred.

    
    

13. Accepting the extent of the violation as accurate, and applying the statutorily mandated 5 per pound of excess weight as the basis for fine, the excess of 16,000 pounds results in a fine of $800.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore:

RECOMMENDED that a Final Order be entered assessing a civil fine in the amount of $800.00 against the Respondent, Delta Building Supplies.

RECOMMENDED this 20th day of July, 1992, in Tallahassee, Florida.

COPIES FURNISHED:

Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street, MS - 58

ARNOLD H. POLLOCK, 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 20th day of July, 1992.

Tallahassee, Florida 32399-0458

Tim Czencz

Delta Building Supplies 12951 SW 124th Street Miami, Florida 33186

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 92-001870

Orders for Case No: 92-001870