STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4803

) BIG RED MACHINERY MOVERS, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in this case was held by telephone conference pursuant to notice on October 26, 1992, in Tallahassee, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Vernon L. Whittier, Jr.

Assistant General Counsel

Florida Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

For Respondent: Gary Pomeroy, Vice President

The Big Red Machinery Movers, Inc. Post Office Box 274

Butler, Wisconsin 53007

ISSUES

Did the Respondent operate an unregistered commercial truck in Florida?

Did the Petitioner correctly assess penalties of $4,101 pursuant to Section 316.545, Florida Statutes, regulating operation of commercial vehicles on a highway in the State of Florida?

PRELIMINARY STATEMENT

An officer of the DOT weighed Respondent's Trucks at a truck inspection station. The drivers produced expired International Registration Plan (IRP) permits for the trucks. The officer determined the trucks had an apportioned Wisconsin registration. One truck weighed 76,000 pounds and the other 76,020 pounds. A penalty of $4,101 was assessed against the Respondent, which paid the penalty. The Respondent was advised of its right to a hearing on the matter, and filed timely a request for hearing with DOT which referred it to the Division of Administrative Hearings.

At hearing, DOT called the officer who had originally handled the case, and introduced the Load Reports which she had prepared.

The Petitioner filed a proposed finding of fact which was read, considered, and substantially adopted.

FINDINGS OF FACT

1. On April 3, 1992, Beverly Griffin inspected and weighed two commercial vehicles owned and operated by the Respondent at the Sneads, Florida weigh station. The drivers produced the vehicles' Wisconsin apportioned registration, but the IRP permits and trip tickets were expired.

   
   

2. The vehicles were weighed. One weighed 76,000 pounds, and the other weighed 76,020 pounds.

   
   

3. The Respondent admitted the violation; however, the Respondent's representative indicated in his plea of mitigation that the company had obtained required permits and brought its equipment into the state on the trucks; however, it had taken longer than expected to complete the work with the machinery the trucks were carrying, and the permits had expired before the trucks and equipment could leave the state.

   
   

4. The Department levied a fined in the amount of $4,101, at 5 cents/ pound for the overweight trucks plus $80 for new trip tickets, $90 for temporary fuel use permits, and $100 penalty for not having current fuel use permits. The Respondent paid the penalties.

   
   

5. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

8. Section 320.02, Florida Statutes, provides in part:

   
   

   1. Except as otherwise provided in this chapter, every owner or person in charge of a motor vehicle which is operated or driven on the roads of this state shall register the vehicle in this state.

      
      

9. Section 320.0715, Florida Statutes, provides for registration of commercial motor vehicles, engaged in interstate commerce under the International Registration Plan.

   
   

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

    
    

    1. . . . 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 5 cents per pound on that weight which exceeds 35,000 pounds. .

       
       

11. Two commercial motor vehicles owned by the Respondent were weighed and inspected at the inspection and weight station at Sneads, Florida. The inspection revealed that the temporary IRP and fuel use permits under which the vehicles entered the state had expired, and the vehicles were being operated on the expired permits. The vehicles had apportioned Wisconsin registrations, and were required to have the IRP and fuel use permits.

    
    

12. A commercial motor vehicle operating in the State of Florida must be registered with a Florida non-apportioned plate or be registered with an apportioned registration under the International Registration Plan under the applicable provisions of Chapter 320, Florida Statutes. If the registration is apportioned, it must have a Florida IRP and fuel use permit.

    
    

13. On the date of the violation, Respondent's vehicles were registered under the International Registration Plan.

    
    

14. The vehicles' weights were 76,000 and 76,020 pounds respectively. As provided in Section 316.545, Florida Statutes, a penalty of 5 cents per pound for each pound of vehicle weight in excess of 35,000 was assessed against the Respondent. The vehicles were a total of 82,020 pounds over 70,000 pounds. At

    5 per pound, the resulting penalty is $4,101.

    
    

15. Section 207.004, Florida Statutes, requires commercial vehicles have a fuel use permit. Section 316.545(4)(a), supra, provides for a fine of $50 for each violation of Section 207.004, supra.

    
    

16. The penalties were correctly assessed against the Respondent pursuant to Section 316.545, Florida Statutes, for operating commercial vehicles on the highways of this state without proper IRP and fuel use permits.

    
    

17. The fact the trucks entered the state on valid permits is not an excuse or mitigation.

RECOMMENDATION

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

That a Final Order be entered finalizing assessment of the $4,351 in penalties against the Respondent pursuant to Section 316.545, Florida Statutes.

DONE and ENTERED this 17th day of November, 1992, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

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

COPIES FURNISHED:

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

Tallahassee, FL 32399-0458

Gary Pomeroy, Vice President

The Big Red Machinery Movers, Inc. Post Office Box 274

Butler, WI 53007

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 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. 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: 92-004803

Orders for Case No: 92-004803