STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1872

)

THOMAS J. BACHOTA, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on July 6, 1992, in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carolyn S. Holifield

Chief, Administrative Law Section 605 Suwannee Street, M.S. Tallahassee, Florida 32399-0458

For Respondent: Mrs. Thomas J. Bachota

201 North Shaffer Street Milford, Indiana 46542

STATEMENT OF THE ISSUE

The issue in this case is whether the $124.00 penalty assessed against Respondent by the Department of Transportation is legally and mathematically correct.

PRELIMINARY STATEMENT

After appropriate inquiry by the undersigned, Mrs. Thomas J. Bachota was accepted as Respondent's qualified representative herein, pursuant to Rule 22I- 6.0008 F.A.C.

At formal hearing, Petitioner Department of Transportation (DOT), presented the oral testimony of R. S. Young and Robert Garris and had three exhibits admitted in evidence.

Respondent had four exhibits admitted in evidence. Thomas J. Bachota testified on his own behalf.

All timely-filed proposed findings of fact have been duly considered and are specifically ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. The maximum legal weight allowed for vehicles traveling on a Florida state highway is 80,000 pounds.

   
   

2. On November 18, 1991, a commercial motor vehicle owned and operated by Respondent was driving on State Road 15, also known as U.S. Highway 1, in Nassau County, Florida.

   
   

3. At that time and place, DOT Weight Inspector R. S. Young weighed Respondent's vehicle on the pit scale at the Hilliard Weigh Station at approximately 23:32 (11:32 PM), using a "split weigh" method because the vehicle exceeded the 56 feet which the DOT scale would accommodate.

   
   

4. Inspector Young filled out the Load Report indicating three separate axle weights of the vehicle with a total weight of 82,480 pounds, which exceeded the maximum weight restriction by 2,480 pounds. The fine imposed was $124.00, calculated at five cents per pound by which the scale weight of the vehicle exceeded the maximum weight of 80,000. Respondent paid the fine.

   
   

5. The scale at the Hilliard Weigh Station which was used by Inspector Young on November 18, 1991 had been inspected and certified pursuant to statute by the Florida Department of Agriculture on July 24, 1991, four months before the weighing of Respondent's vehicle. On March 4, 1992, approximately five months after Respondent's vehicle was weighed, the Hilliard Weigh Station scale was again inspected and certified by the Florida Department of Agriculture. Neither time was there a discrepancy in true weight which would have materially affected the weighing of Respondent's truck on November 18, 1991. Affording Respondent's position every benefit of the doubt, it is possible, but not proven, that the Hilliard Weigh Station scale could have weighed 80 pounds heavier than the truck's true weight on November 18, 1991.

   
   

6. Respondent contended that he had "split weighed" his loaded vehicle earlier on November 18, 1991 on a commercial Howe scale and that the Howe scale weight was accurate in showing his vehicle weighed under the 80,000 pound statutory limit, as opposed to the weight at the Hilliard Weigh Station later the same day, which weight showed the loaded vehicle weighed over the 80,000 pound statutory limit.

   
   

7. All witnesses are agreed that if done correctly, a "split weigh" is reasonably accurate for multiple tandem, multiple axle vehicles longer than 51 feet, and it is unrefuted that many of these types of weigh-ins are done regularly at the Hilliard Weigh Station and throughout the industry. The method is specifically permitted for use by law enforcement, in this instance, by DOT. However, the expert testimony of Mr. Robert Garris, Supervisor of Weights and Measures for the State of Florida Department of Agriculture and Consumer Services, is accepted that "split weighs" on a Howe scale are "assuredly inaccurate" because such scales are not manufactured to be used with "split weighs" and that, although DOT is authorized, for law enforcement purposes, to do "split weighs", DOT's scales also are not necessarily any more accurate for use with the "split weigh" method than the Howe commerical scale. Therefore, it is found that if it could be shown by competent evidence that the Howe scale "split weigh" and the Hilliard scale "split weigh" were each done correctly and showed different weights, one weight being "over" and one weight being "under" the statutory limit, DOT could not prevail herein by a preponderance of the evidence.

8. Respondent presented a weight ticket purportedly showing that this loaded vehicle had a gross weight of 76,600 pounds on the Howe scale at 14:29 (2:29 PM) on November 18, 1991, also achieved by a "split weigh" method. Although self-serving, Respondent's direct testimony to this effect is unrefuted, as is his direct testimony that when he weighed his loaded truck on the Howe scale, the Howe scale bore a current Florida Department of Agriculture certification seal. However, the four weights printed automatically onto the Howe scale weight ticket do not add up to the pencilled "76,600" handwritten thereon.

   
   

9. Upon Respondent's direct testimony and supporting exhibits, it was also shown that a commercial Certified Automated Truck Scale (CAT Scale) had recorded the gross weight of Respondent's front two axles as only 19,280 pounds on October 9, 1991. The CAT scale, which renders a "full platform" gross weight, provides a more accurate gross weight than the "split weigh" method, but this weigh-in occurred approximately a month before the weighing of Respondent's truck at the Hilliard Weigh Scale on November 18, 1991 and accounted for only two axles and no load.

   
   

10. Respondent contended that if one added together the weight of his load as stated by the shipper on his November 18 bill of lading, the manufacturer's weight of 9500 pounds as stamped on the side of the trailer, a weight he personally estimated for nylon ropes to secure the load, possible fuel intake, and the CAT weight of his vehicle's front two axles, Respondent's vehicle weight on November 18 would still have been under 80,000 pounds when it reached the Hilliard scale, and Respondent would not have been subject to an overweight assessment and fine. However, this scenario is speculative. It is speculative because of insufficient predicate for the accuracy of some of the figures named, due to the failure of the numbers on the Howe scale ticket to add up as specified by Respondent, and due to the margin for error when only two axles were weighed a month earlier on the CAT scale.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to S120.57(1) F.S.

    
    

12. Section 316.531 F.S. provides that the overall gross weight of vehicles on the highways "may not exceed 80,000 pounds . . ."

    
    

13. Petitioner DOT is authorized to enforce the maximum weight restrictions and assess penalties for violations thereof under provisions of Sections 316.535(1) and (2) and 316.545 F.S.

    
    

14. Section 316.545(3) F.S. provides, in pertinent part, as follows:

    
    

    (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. . . .

    
    

15. The burden herein is upon the agency. DOT herein established by a preponderance of the evidence that Respondent's truck exceeded by 2,480 pounds the legal maximum gross weight when it was weighed at the Hilliard Weigh Station on State Road 15 in Nassau County, Florida on November 18, 1991 and that the penalty DOT assessed at that time was legally and mathematically correct pursuant to the foregoing statutes. The agency's prima facie case was not overcome by Respondent.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a Final Order ratifying the assessment and penalty of $124.00.

DONE and RECOMMENDED this 17th day of September, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17 day of September, 1992.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-1872

The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF)

Petitioner's PFOF:

1-6, 8 (There is no "6", but the unnumbered paragraph between "5" and "7" is treated as "6") Accepted.

7 Accepted in part and rejected in part because of Respondent's direct testimony which established certain facts found.

Respondent's PFOF

1, 13 Accepted that some of this is what the shipper told Respondent and placed on the bill of lading, but it remains hearsay and unpersuasive on the dispositive issue of true weight in light of other exhibits and testimony.

1. Accepted except where contrary to the probative evidence and rejected as unproven and also rejected where unnecessary, subordinate, or cumulative. Specifically, the numbers show a print out of 4 axles, not 3, or four printed items for gross, tare and net pounds. It is not clear which. Also, the total of the four figures are in excess of legal weight limits. See Exhibit R-1.

   
   

2. Rejected as not of record and rejected as legal or persuasive argument as opposed to a proposed finding of fact; rejected as not dispositive and as not persuasive.

   
   

3. The first sentence is accepted. The remainder is rejected as mere legal or persuasive argument.

5-6, 8-10 Accepted except where unnecessary, subordinate, or cumulative.

Carolyn S. Holifield

Chief, Administrative Law Section Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Mrs. Thomas Bachota

201 North Shaffer Street Milford, Indiana 46542

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 Consel 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: 92-001872

Orders for Case No: 92-001872