STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1874

) LaCROIX CONSTRUCTION CO., INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in West Palm Beach, 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 Haydon Burns Bldg., MS - 58 605 Suwannee Street

Tallahassee, FL 32399-0458

For the Respondent: Ronald C. LaCroix, President

LaCroix Construction Co., Inc. 5900 Biscayne Drive.

Lake Worth, FL 33463 STATEMENT OF THE ISSUES

The issue for consideration here is whether Respondent's vehicle in question exceeded the permitted weight and, if so, what penalty, if any, is appropriate.

PRELIMINARY MATTERS

Respondent, LaCroix Construction Co., Inc., (LaCroix), was assessed a civil penalty of $240.05 on November 14, 1991 for operating an overweight vehicle on the roads of Florida. By letter of January 8, 1992, the Respondent requested a formal hearing on the action of the Commercial Motor Vehicle Review Board which upheld the penalty, 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 the parties' response to the Initial Order entered herein, Hearing Officer William J. Kendrick set the matter for hearing in West Palm Beach on June 24, 1992 at which time it was heard as scheduled by the undersigned to whom the file had been transferred in the interim.

At the hearing, Petitioner presented the testimony of Joseph Borras, an officer with the Department's Office Of Motor Carrier Compliance, (OMCC), and

introduced Petitioner's Exhibit 1. Respondent testified in his own behalf. The Hearing Officer called Lt. Thomas Carnicella, also of the Department's OMCC, to explain the vehicle weight classifications.

Subsequent to the hearing, Petitioner submitted Proposed Findings of fact which have been approved and are incorporated into this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Florida Department of Transportation was the state agency responsible for enforcing the statutes involving commercial carrier vehicle weights on covered vehicles operated on the streets and highways of this state. It does so through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to conduct random safety and compliance inspections of commercial vehicles being operated in this state.

   
   

2. On November 14, 1991, Officer Joseph Borras stopped a 1985 Chevrolet truck, owned by the Respondent, LaCroix, on State Road 702 in Palm Beach County, for a routine inspection. Officer Borras requested the driver to produce his driver's license and the registration slip for the vehicle. This registration slip, which was to expire on December 31, 1991, reflected the weight/length of the vehicle as 7860 pounds and the gross vehicle weight/load, (GVW/LOD) as 7860 pounds also. Since the GWV/LOD weight, (that prescribed by statute for use in these situations) was 7860 pounds, the weight used as legal weight for assessing penalty was 7,999 pounds.

   
   

3. Officer Borras then weighed the vehicle at the scene utilizing a set of recently calibrated Department-owned scales, using the standard weight procedures. This weighing of Respondent's vehicle at that time showed it to weigh, loaded, 12,800 pounds. When the 7,999 pound maximum legal weight was subtracted from the actual weight, Respondent's truck was seen to be 4,801 pounds overweight. That excess, taxed at 5 per pound, resulted in a civil penalty of $240.05. This sum was paid by the Respondent by check at the scene.

   
   

4. Officer Borras, who was described by the Respondent as being very polite and cooperative at all times, listened to the Respondent's protestations to the effect that the GVW/LOD figure on the registration slip was obviously in error since it was the same as the empty weight of the vehicle, but had no options in the matter. He is mandated to go by the GVW/LOD figure which appears on the registration slip. It is the responsibility of the vehicle's owner to insure that the GVW/LOD figure which appears on the registration slip is correct. Here, Respondent failed to do this, effecting re-registration of the vehicle by mail on December 31, 1990. The registration slip for the prior year, it is noted, also reflected 7,860 pounds as the GVW/LOD. In 1989 it was 10,500 pounds with a weight/length of 7,860 pounds. In 1992, both weight/length and GVW/LOD limits for this same truck were raised to 14,999 pounds. Clearly, the weight/length figure is in error on that form as well.

   
   

5. Mr. LaCroix, after the truck was cited and released, proceeded to the city dump, his intended destination, where, prior to dumping, his vehicle was weighed to determine the dump charge. No evidence was produced on the issue of the reliability of those scales. They reflected, however, a loaded vehicle weight of 11,940 pounds, and an empty weight of 8,000 pounds. Because of the unknown reliability of the dump scales and the certified accuracy of the Department's portable scales, the weight determined by Officer Borras is accepted as correct.

   CONCLUSIONS OF LAW

   
   

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

   
   

7. By the provisions of Section 316.545, Florida Statutes, the Department of Transportation is granted the authority to enforce the provisions of the laws of this state regarding weight, load, safety, registration, and fuel tax consumption of commercial carriers operating on the streets and highways of Florida and to levy penalties for the violation of those laws.

   
   

8. Subsection (2) of that statute directs compliance officers to;

   
   

   ... inspect the license plate or registration certificate of the commercial vehicle, ..., to determine if its gross weight is in compliance with the declared gross vehicle weight ....

   
   

9. In the event the vehicle is found not to be in compliance with the weight requirements, the Department shall levy a fine of 5 per pound on the excess. To determine the excess, the Department shall weigh the vehicle using scales routinely calibrated for accuracy and thereafter compare that recorded gross vehicle weight against the maximum gross vehicle weight for that vehicle declared by the owner whose responsibility it is, by law, to make such declaration. Section 320.01, Florida Statutes, places upon the owner or person applying for vehicle registration the burden to declare the maximum gross weight of the vehicle being registered.

   
   

10. "Gross vehicle weight" is determined under Section 320.01, Florida Statutes, by adding to the net weight of the truck the weight of the load carried by it. The net weight of the vehicle is determined by the manufacturer. Therefor, it is seen that the gross vehicle weight of the vehicle is determined by the owner who adds to the manufacturer's net weight the weight of the maximum load he believes he will carry in that vehicle.

    
    

11. Here, the owner of this vehicle declared 7,680 pounds as the gross vehicle weight of the truck at the time it was recorded for the year in issue. Other gross weights had been selected in prior years. However, on the date in question, the maximum vehicle weight permitted for this vehicle was 7,999 pounds which is arrived at by rounding up to the next thousand from the gross vehicle weight declared by Respondent. When that weight was subtracted from the gross vehicle weight as measured by the Department's scales as applied by Officer Borras, the excess was 4,801 pounds. Applying the statutory figure of 5 per pound to that figure resulted in the penalty of $240.05. It appears the procedure was properly followed.

    
    

12. Respondent raised a question as to the accuracy of the Department's portable scales used in this weighing. The Department's representative indicated they had been calibrated for accuracy on schedule and no evidence was presented to show they were inaccurate. That the dump scales reflected a different overweight is not material, however, since there is no evidence as to the accuracy of that scale, either. Taken together, the evidence satisfies the Department's burden to show, by a preponderance of the evidence, that the

Respondent's vehicle was overweight at the time it was being operated on the state roads and that the penalty was appropriate both in fact and in law.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered imposing a civil fine of $240.05 on the Respondent, LaCroix Construction Company, Inc.

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

COPIES FURNISHED:

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.

Vernon L. Whittier Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. - 58

Tallahassee, Florida 32399-0458

Ronald C. LaCroix President

LaCroix Construction Company, Inc. 5900 Biscayne Drive

Lake Worth, Florida 33463

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 Bldg. 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.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner, DOAH CASE NO. 92-1874 DOT CASE NO. 92-0019

vs.

LaCROIX CONSTRUCTION CO., INC.,

Respondent.

/

FINAL ORDER

LaCROIX CONSTRUCTION CO., INC. (hereinafter LaCROIX), Respondent, was fined by the DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT) on November 14, 1991, for operating an overweight commercial vehicle on State Road 45 South in Palm Beach County, Florida. LaCROIX appealed to the Commercial Motor Vehicle Board for review of the $240.05 fine paid The Board declined refund of the fine. Respondent requested an administrative hearing and the matter was referred to the Division of Administrative Hearings.

A hearing was held in this matter on June 24, 1992. The Hearing Officer entered a Recommended Order on July 20,1992, a copy of which is attached hereto. No exceptions to flee Recommended Order were filed by either party.

After a review of the record in its entirety, it is determined that the Hearing Officer's Findings of Fact are correct and incorporated herein. The Conclusions of law and Recommendation are modified as to denial of the refund. Section 320.01(12), Florida Statutes, provides that "gross vehicle weight" means that the maximum gross weight of the commercial vehicle is ". . . the maximum gross weight as declared by the owner or person applying for registration." Although it is the vehicle owner's responsibility to declare maximum gross weight and check the correctness of his registration, it is evident from the pattern of duplicate entries in this case and many others brought to the DEPARTMENT's attention, that the tag agency made an error. The tag agency showed the same amount for gross weight as the weight of the vehicle on the registration. The vehicle owner should not be penalized for this error.

Therefore, it is ORDERED that LaCROIX CONSTRUCTION CO., INC.'s request for refund of the $240.05 fine paid is HEREBY GRANTED.

DONE AND ORDERED this 30th day of September, 1992.

BEN G. WATTS, P.E.

Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

COPIES FURNISHED:

Arnold H. Pollock Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Ronald C. LaCroix, President LaCroix Construction Co., Inc. 5900 Biscayne Drive

Lake Worth, Florida 33463

Vernon L. Whittier, Jr., Esquire Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Elyse S. Kennedy

Commercial Motor Vehicle Review Board Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-001874

Orders for Case No: 92-001874