STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1882

) DIXIE-SOUTHERN CONSTRUCTORS, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 21, 1992, a formal administrative hearing was held in this case in Wauchula, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul Sexton, Esquire

Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Doris M. Caves

Controller

Dixie-Southern Constructors Route 2, Box 78A

Bowling Green, Florida 33834 STATEMENT OF THE ISSUE

The issue in this case is whether, and to what extent, the Petitioner, the Department of Transportation (DOT), should penalize the Respondent, Dixie- Southern Constructors, for operating a commercial motor vehicle in excess of the maximum gross vehicle weight authorized by the declared weight of the vehicle, in violation of Section 316.545, Fla. Stat. (1991).

PRELIMINARY STATEMENT

In this case, a Department of Transportation (DOT) Motor Vehicle Compliance Officer cited the Respondent, Dixie-Southern Constructors, with operating a commercial motor vehicle in excess of the maximum gross vehicle weight authorized by the declared weight of the vehicle, in violation of Section 316.545, Fla. Stat. (1991). The DOT assessed a $1,176.05 fine against the Respondent. The Respondent paid the fine under protest and requested that the Commercial Motor Vehicle Review Board (the Review Board) drop or reduce the fine. The Review Board considered the Respondent's request on February 13, 1992, and denied it by letter dated February 18, 1992.

By letter dated February 28, 1992, the Respondent requested formal administrative proceedings. By letter dated March 24, 1992, the DOT referred the matter to the Division of Administrative Hearings for formal administrative proceedings.

Final hearing was scheduled and held on May 21, 1992, in Wauchula, Florida. The DOT called a single witness in its case-in-chief and had DOT Exhibit 1, the Load Report and Field Receipt and Case Report, admitted in evidence. The Respondent's controller testified and had Respondent's Exhibits 1 through 5 admitted in evidence. In rebuttal, the DOT called two more witnesses and had DOT Exhibits 2 through 4 admitted in evidence.

At the conclusion of the final hearing, the DOT ordered the preparation of a transcript of the hearing, and the parties were given ten days after the filing of the transcript in which to file proposed recommended orders. Only the DOT filed a proposed recommended order. The proposed findings of fact contained in the DOT's proposed recommended order are accepted and incorporated to the extent not subordinate or unnecessary.

FINDINGS OF FACT

1. The Respondent, Dixie-Southern Constructors, is in the construction business. In connection with its construction business, it operates a 1979 Ford.

   
   

2. The Respondent generally registered the vehicle with the Department of Highway Safety and Motor Vehicles (DHSMV) through the Bartow tag agency. When it operated the vehicle as a van, the Respondent declared a gross vehicle weight (GVW) of 22,000 pounds.

   
   

3. During the early part of 1989, the Respondent converted the vehicle to a haul truck and, on or about May 16, 1989, changed the vehicle's registration to reflect the conversion and to declare a GVW of 43,099 pounds. The change increased the registration fee for the vehicle by approximately $75 for the last seven months of 1989. For reasons not explained by the evidence, the Respondent made this change through the Lakeland tag agency. Also for reasons not explained by the evidence, the Respondent replaced the vehicle's tag.

   
   

4. In the normal course of business, the Lakeland tag agency would have reported the May 16, 1989, change to the DHSMV, either through "on-line" computer entries, or by sending the DHSMV a computer tape of transactions undertaken by the tag agency while "off-line." The report would have included the new license tag number, the new GVW and the new vehicle type. This new information would have been included in the registration renewal reminder sent to the Respondent by the DHSMV at the end of 1989.

   
   

5. It was not proven that the renewal notice was not sent, as usual, or that it did not contain the correct GVW of 43,099 pounds. The evidence proved only that, instead of renewing, on January 22, 1990, the Respondent again purchased a new tag and registered the vehicle at a GVW of 22,000 pounds again. (The vehicle was registered as a truck, not as a van.)

   
   

6. On January 31, 1991, the Respondent renewed the vehicle's registration, again at a GVW of 22,000 pounds. (This time the vehicle was registered as a van instead of as a haul truck.)

7. On November 18, 1991, a DOT compliance officer stopped the Respondent's vehicle as it was being operated on State Road 60 headed east between Mulberry and Bartow. After inspecting the vehicle's registration certificate, the officer suspected that the vehicle exceeded its declared GVW and had the vehicle weighed. The scale indicated a GVW of 49,520. The officer assessed a $1,176.05 fine and impounded the vehicle. The Respondent paid the fine to regain possession of the vehicle.

   
   

8. On November 20, 1991, the Respondent again purchased a new tag for the vehicle, declaring a GVW of 54,999 pounds and designating the vehicle as a haul truck. The registration fee for twelve months was $594.10, versus $194.10 for the prior registration, when the declared GVW was 22,000 pounds.

   
   

   CONCLUSIONS OF LAW

   
   

9. It is clear that, in a case to discipline a licensee, the regulating agency has the burden of proof. Cf. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The general law is that the burden of proof is on the party asserting the affirmative of the issue. See Balino v. Dept. of Health, etc., 348 So. 2d

   349 (Fla. 1st DCA 1977). It is concluded that, since the Respondent is a "person aggrieved by the imposition of" the fine in this case, the DOT is the party asserting the affirmative of the issue (i.e., the imposition of the fine) and has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the fine. Cf. Final Order, Dept. of Transp. v. Jones, DOAH Case No. 90-3247, entered February 4, 1991.

   
   

10. Section 316.545(2)(b), Fla. Stat. (1991), provides in pertinent part:

    
    

    The officer shall 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. If its gross weight exceeds the declared weight, the penalty shall be 5 cents per pound on the difference between such weights.

    
    

11. As reflected in the Findings of Fact, it is concluded that the DOT did prove, by a preponderance of the evidence, that the vehicle being operated by the Respondent on November 18, 1991, was 49,520 pounds, while the declared weight was 22,000 pounds, authorizing its operation at up to a maximum of 25,999. See Section 320.08(4), Fla. Stat. (1991).

    
    

12. Under Section 316.545(2)(b), the question is whether the gross weight "is in compliance with the declared gross vehicle weight." In this case, a weight of up to a maximum of 25,999 would be "in compliance with the declared gross vehicle weight." The "difference," on which the penalty is assessed, is the difference between 25,999 and the gross weight of 49,520, or a difference of 23,521 pounds. The statutory penalty computes to $1,176.05.

    
    

13. Under the rationale in the Final Order, Dept. of Transp. v. Keystone Excavators, Inc., DOAH Case No. 90-7815, entered August 1, 1991, the requirement of a ten percent tolerance factor would apply only to subparagraph (2)(a) of Section 316.545, Fla. Stat. (1991).

    
    

14. Under the language of Section 316.545(2)(a) alone, the imposition of a penalty, in the amount specified by the statute, would appear to be mandatory.

    But Section 316.545(4)(c) and (8), Florida Statutes (1991), gave the Respondent the right to "apply to the [Commercial Motor Vehicle Review Board] for a modification, cancellation, or revocation of the penalty, and the review board is authorized to modify, cancel, revoke, or sustain such penalty." Reading all of the provisions of Section 316.545 together, it must be concluded that the statutory penalty is not mandatory but rather is subject to "modification, cancellation, or revocation" by the Review Board. In the Final Order, Dept. of Transp. v. Keystone Excavators, Inc., DOAH Case No. 90-7815, entered August 1, 1991, the DOT held in pertinent part: "The Commercial Motor Vehicle Review Board (Board) and the Department have the authority to modify, cancel or revoke a penalty upon a finding of error, mistake or subsequent production of documentation but must otherwise levy the penalty as prescribed by the Statute without mitigation for extenuating circumstances."

    
    

15. The Respondent attempted to demonstrate at the final hearing that the Bartow tag agency, or the Department of Highway Safety and Motor Vehicles, made an error or mistake which caused the Respondent's truck to have an incorrect declared gross vehicle weight. But the evidence did not establish a basis for modifying, cancelling or revoking the statutory penalty. The evidence did not prove that the Respondent reported the correct information and that the tag agency or the DHSMV incorrectly recorded it and assessed an incorrect registration fee. Nor did the evidence prove that the DHSMV made an error in the issuance of renewal notices on the vehicle.

    
    

16. Even if the evidence had contained such proof, the Respondent bears the ultimate responsibility to advise the tag agency, and therefore ultimately the DHSMV, as to the correct declared gross vehicle weight. The Respondent knew, or should have known, that it was operating its vehicle at a GVW of well in excess of 22,000 pounds. It also knew, or should have known, that it was paying a substantially reduced registration fee as a result of the low declared GVW. The Respondent was under an obligation to report the inaccurate declared GVW to the tag agency or the DHSMV. Its failure to do so does not establish a basis for modifying, cancelling or revoking the statutory penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order upholding the $1,176.05 fine it assessed against the Respondent in this case.

RECOMMENDED this 9th day of July, 1992, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 9th day of July, 1992.

Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Doris M. Caves Controller

Dixie-Southern Constructors Route 2, Box 78A

Bowling Green, Florida 33834

Ben G. Watts Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Elyse S. Kennedy Executive Secretary Commercial Motor Vehicle

Review Board

Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF TRANSPORTATION WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF TRANSPORTATION CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION,

Petitioner,

vs. DOAH CASE NO. 92-1882

DOT CASE NO. 92-0115

DIXIE-SOUTHERN CONSTRUCTORS,

Respondent.

/

FINAL ORDER

DIXIE-SOUTHERN CONSTRUCTORS (hereinafter DIXIE-SOUTHERN), Respondent, was fined by the DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT) on November 18, 1991, for operating an overweight commercial vehicle on State Road 60 in Polk County, Florida. DIXIE-SOUTHERN appealed to the Commercial Motor Vehicle Board for review of the $1,176.05 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 for a hearing.

A hearing was held in this matter on May 21, 1992. The Hearing Officer entered a Recommended Order on July 9, 1992, a copy of which is attached hereto. No exceptions to the Recommended Order were filed by either party.

After a review of the record in its entirety, it is determined that the Hearing Officer's Recommended Order is correct in law and fact and is incorporated as if fully set out herein.

The Hearing Officer's Recommended Order having been ADOPTED, it is ORDERED that DIXIE-SOUTHERN CONSTRUCTORS' request for refund of the fine

paid is HEREBY DENIED.

DONE AND ORDERED this 21st day of September, 1992.

BEN G. WATTS, P.E.

Secretary

Florida Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

J. Lawrence Johnston Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Doris M. Caves Controller

Dixie-Southern Constructors Route 2, Box 78A

Bowling Green, Florida 33834

Paul Sexton, 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 APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY RESPONDENT PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(D), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 32399-0458, WITHIN THIRTY

(30) DAYS OF RENDITION OF THIS ORDER. Tallahassee, Florida 32399

J. Lawrence Johnston Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Doris M. Caves Controller

Dixie-Southern Constructors Route 2, Box 78A

Bowling Green, Florida 33834

Paul Sexton, 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 APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY RESPONDENT PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS

OF RULE 9.110(D), FLORIhaving been ADOPTED, it is

ORDERED that DIXIE-SOUTHERN CONSTRUCTORS' request for refund of the fine paid is HEREBY DENIED.

DONE AND ORDERED this 21st day of September, 1992.

J. Lawrence Johnston Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Doris M. Caves Controller

Dixie-Southern Constructors Route 2, Box 78A

Bowling Green, Florida 33834

Paul Sexton, 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 APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY RESPONDENT PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS

OF RULE 9.110(D), FLORIhaving been ADOPTED, it is

ORDERED that DIXIE-SOUTHERN CONSTRUCTORS' request for refund of the fine paid is HEREBY DENIED.

DONE AND ORDERED this 21st day of September, 1992.

J. Lawrence Johnston Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Doris M. Caves Controller Dixie-Southe

Docket for Case No: 92-001882

Orders for Case No: 92-001882