STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4802

) APPALACHIAN LEASING SERVICES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, P. Michael Ruff, on December 17, 1992, in Tallahassee, Florida.

APPEARANCES

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

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Respondent: Jim Smith, Manager

Appalachian Leasing Services, Inc. 1285 Old Frankfort Pike

Lexington, Kentucky 40504 STATEMENT OF THE ISSUES

This case concerns whether a fee and penalty assessed by the Department of Transportation for alleged violations of Sections 316.545 and 320.0715, Florida Statutes, should be imposed on the Respondent for its allegedly operating a commercial vehicle on the highways of Florida with no apportioned "International Registration Plan" registration or permit for that vehicle.

PRELIMINARY STATEMENT

This cause arose when Respondent, Appalachian Leasing Services, Inc., the owner of a commercial vehicle (truck) being operated on Interstate 75 and State Road 93, on April 21, 1992, was shown to be registered in the State of West Virginia but which did not have an International Registration Plan registration showing Florida as an "apportioned state". The Department's inspector issued a "Load Report" and "Field Receipt No. 74023K" assessing a penalty of $.05 per pound for overweight poundage of 42,380 pounds, for a total fine assessed against the vehicle for lack of Florida apportioned registration in the amount of $2,119.00. Additionally, the inspector issued IRP Trip Permit No. 115944, assessing a fee of $30.00 for that trip permit.

The cause came on for hearing as noticed. The Petitioner adduced the testimony of Jimmy Dean Franklin, a safety officer with the Department of Transportation (DOT or Department). The Respondent presented the testimony of Jim Smith and Rebecca Eddy. Nine (9) exhibits were adduced and admitted into evidence, the first two being the Department's exhibits. At the conclusion of the proceeding, the Department availed itself of the right to submit proposed findings of fact and conclusions of law. The Respondent did not submit proposed findings of fact and conclusions of law but, instead, submitted a letter explaining its position in this proceeding.

FINDINGS OF FACT

1. The Respondent, Appalachian Leasing Services, Inc., is the owner of a commercial vehicle which was operated on Interstate 75 and State Road 93 on April 21, 1992, when the vehicle stopped at the DOT weight station in White Springs, Florida. The Respondent is in the business of renting and leasing commercial trucks to customers who use the trucks for one or more trips for hauling freight in interstate and intrastate commerce. The truck in question was stopped at the weight station at 6:00 p.m. on April 21, 1992. The vehicle was registered in the State of West Virginia. The International Registration Plan (IRP) registration was examined by weight inspector (now officer) J.D. Franklin. That registration did not show Florida as an apportioned state. Inspector Franklin weighed the vehicle which produced a total weight of 77,380 pounds. The inspector used a statutory legal weight for lack of registration situations of 35,000 pounds which resulted in an excess or non-registered weight condition of 42,380 pounds. The inspector then issued a Load Report and Field Receipt No. 74023K assessing a penalty of $.05 per pound for that weight, which resulted in a fine of $2,119.00. Additionally, the inspector issued IRP Trip Permit No. 115944, assessing a fee of $30.00 for the trip permit which was necessary to render the vehicle legal to operate in Florida for that trip or for a maximum of ten (10) days. Thus, the total assessment for the penalty and the permit fee was $2,149.00.

   
   

2. The Respondent company and its personnel, Ms. Eddy and Mr. Smith, who dealt with the registration of such vehicles, particularly Ms. Eddy, had been under the impression that the vehicle was bound from West Virginia to the west coast of the United States and the legally required registration was thus aboard the vehicle and it was correctly registered for that journey. In fact, unbeknownst to the Respondent owner of the truck, the lessee, for whom the trip was being made, had changed the truck's destination to Florida. In spite of that, the Respondent had already taken steps to register the vehicle with Florida apportionment by sending a cashier's check to the West Virginia Department of Transportation IRP office. Thus, the apportioned registration process for Florida was in progress at the time the subject stop was made and penalty assessed in Florida by officer Franklin.

   
   

3. Florida has a policy, according to Ms. Elise Kennedy, the Executive Secretary to the Commercial Motor Vehicle Review Board of DOT, that if the foreign state where the vehicle is registered, or its tag agency, will take full responsibility for the vehicle actually being legally registered to go between that state and Florida, then a 100 percent refund of the penalty amount will be made by DOT. If the foreign state (here, West Virginia) asserts that the applicant company has done what it was supposed to do in seeking to obtain registration, but the registration simply has not been accomplished yet, then a

   75 percent refund will be made. Both refund situations under Florida's policy, however, require that the foreign state supply written documentation of its position and the action taken by the company to obtain proper registration. If

   no written documentation from the foreign state is forthcoming, then DOT has a policy not to refund any of the penalty amount. Here, West Virginia would provide no written documentation because it had not received the cashier's check for the registration sent in by the Respondent.

   
   

4. Mr. Jim Smith of the Respondent company established that, indeed, the cashier's check had been issued on April 16, 1992 and mailed to the West Virginia tag office on April 17, 1992. Mr. Smith contacted Ms. Elise Kennedy of DOT and explained that situation. She told him that if West Virginia would send a letter to the effect that the application was in process, then perhaps a partial refund could be made. West Virginia refused to do so, however, because they had never received the check. In fact, it had been lost in the mail or for unknown reasons to the Respondent, it had never gotten to the West Virginia authorities although the Respondent established that it was posted. Because of this problem, a new check was issued and dispatched to the West Virginia tag office on April 29, 1992. The Respondent is in possession of a "paid stamp" from West Virginia dated May 1, 1992 showing that all registration had been properly paid and effected. See exhibit 8 in evidence. Thus, through circumstances not caused by the Respondent, the West Virginia registration, including the IRP apportionment for Florida, was not timely effected at the point the vehicle was apprehended in Florida and the penalty assessed.

   
   

5. Commercial vehicles registered in a member jurisdiction such as Florida or West Virginia are required to be apportioned registered for each member state the vehicle is operating in or the vehicle must be the subject of a valid temporary IRP permit to operate in the member state. Florida is a member of the IRP, as is West Virginia; therefore, both are jurisdictional states.

   
   

6. The Respondent has a franchise from Paccar Leasing Services to lease Kenworth commercial vehicles (trucks) in the States of Kentucky, West Virginia, Ohio, and Virginia. The Respondent has been in the business of leasing and renting commercial vehicles for five years. Mr. Jim Smith, the manager of the Respondent company, indicated that the check was, indeed, sent to the West Virginia registration office to renew the subject vehicle's IRP registration for Florida; however, because West Virginia did not receive the check, it would not give a letter assuring Florida that registration was in process. There was apparently a misunderstanding between the Respondent and the lessee of the vehicle as to the vehicle's destination. Mr. Smith acknowledges that it is the responsibility of his leasing company to have current and valid registrations or permits to operate in various states before his company's vehicles are operated in those states by its lessees. Although a proper registration for Florida was obtained as soon as the mistake was discovered on April 21, 1992, the subject vehicle was not apportioned, registered or permitted for the State of Florida. This was shown to be an inadvertent mistake and not part of a regular pattern of conduct by the Respondent, however.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The Department of Transportation has authority to enforce "...the provisions of weight, load, safety, commercial motor vehicle registration and fuel tax compliance laws..." and to levy fines for violation thereof, pursuant to Section 316.545, Florida Statutes.

9. Section 316.545, Florida Statutes, provides in part:

   
   

   (2)(b)...in those cases when the commercial vehicle, as defined in s. 316.003(66), is being operated over the highways of the state with

   an expired registration or with no registration from this or any other jurisdiction or is not registered under the applicable provisions of Chapter 320, the penalty herein shall apply on the basis of $.05 per pound on that weight which exceeds 35,000 pounds....

   
   

10. Section 320.0715, Florida Statutes, provides in part:

    
    

    (2)(a) An international registration plan motor vehicle trip permit registration may be issued for any vehicle which could be lawfully operated

    in the international registration plan jurisdiction in full registration or proportional registration if full registration or proportional registration were obtained. A Florida trip permit shall expire ten days after issuance. The cost of a trip permit shall be $30.00, payment of which shall exempt the vehicle from payment of Florida apportioned license plate fees during the term for which this permit is

    valid. Any vehicle for which a trip permit has been issued may be operated in interstate or intrastate commerce in the jurisdiction for the period allowed under such permit. No motor carrier to whom a trip permit is issued shall knowingly allow the permit to be used by any other person, organization, or vehicle.

    
    

    (b) A motor carrier may, upon payment of the $30.00 fee, secure from the department or a designated authorized agent of the department a Florida international registration plan motor vehicle trip permit which shall be valid for ten days. Such trip permit shall show the name and address of the motor carrier to whom it is issued, the date the vehicle is placed in and removed from service, a complete identification of the vehicle on which the permit

    is to be used, and the name and address of the owner or lessee of the vehicle. The permit shall then be carried on the vehicle which it identifies and shall be exhibited on demand to any authorized personnel. The motor carrier to whom a permit issued shall be solely responsible for the proper use of the permit

    by its employees and lessees. Any erasure, alteration, or unauthorized use of such permit shall render it

    invalid and of no effect.

    
    

11. Florida is a member of the IRP, and West Virginia is a member state of IRP. Commercial vehicles registered in West Virginia operating in Florida are required to be registered and IRP apportioned for Florida or have a current temporary IRP permit for Florida.

12. The Respondent, the owner of the vehicle in question which was operated over the highways of Florida with no apportioned IRP registration or temporary permit when stopped, could correctly be assessed a penalty of

$2,119.00 for the 42,380 pounds weight in excess of the statutory 35,000-pound legal limit pertaining to registration violations. See Section 316.545(2)(b), Florida Statutes. When the vehicle in question was stopped at the weight station, there was no temporary or regular IRP registration in effect for Florida for the subject vehicle. In order for the vehicle to proceed on its way after being discovered to be in violation, the fines had to be paid and the vehicle legally registered, at least for that trip. Thus, the temporary IRP permit was acquired for a fee of $30.00. There is no question that the vehicle was in violation and that the $2,119.00 penalty assessment was correctly calculated based upon $.05 per pound for 42,380 pounds in excess of the 35,000- pound statutory base for calculation and assessment of fines. Thus, the Department is legally correct in assessing the fee and penalty totaling

$2,149.00 for the violation and for the cost of the temporary permit. The Department should, however, take into account the inadvertent, isolated instance of failure to have the vehicle properly registered and the circumstances underlying the reason it was not registered on the date the vehicle was stopped and refund a portion of the penalty.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that a Final Order be entered by the Department of

Transportation finding that the fee and penalty totaling $2,149.00 was correctly assessed Appalachian Leasing Services, Inc. by the Department under the statutory provisions cited above but that in the exercise of its discretion and taking into account the extenuating circumstances established by the record evidence, 50 percent of the penalty portion be refunded to the Respondent.

DONE AND ENTERED this 20th day of April, 1993, in Tallahassee, Florida.

P. MICHAEL RUFF 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 April, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4802

Petitioner's Proposed Findings of Fact 1-3. Accepted.

Respondent's Proposed Findings of Fact

Respondent submitted no proposed findings of fact.

COPIES FURNISHED:

Ben Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Attn: Eleanor F. Turner, M.S. 58

Thornton J. Williams, Esq. General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, FL 32399-0458

Vernon L. Whittier, Jr., Esq. Department of Transportation 605 Suwannee Street

Mail Station 58

Tallahassee, FL 32399-0458

Jim Smith, Manager

Appalachian Leasing Services, Inc. 1285 Old Frankfort Pike

Lexington, KY 40504

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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 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: 92-004802

Orders for Case No: 92-004802