STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4205

) SUDDATH VAN LINES, INC., )

)

Respondent. )

)

RECOMMENDATION

Pursuant to notice, the above matter was heard by telephone before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 4, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Cindy S. Price, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

For Respondent: Rick Schroeder

Post Office Box 60069 Jacksonville, Florida 32236

STATEMENT OF THE ISSUE

The issue is whether respondent should have a penalty in the amount of

$933.00 assessed for allegedly violating Section 316.545, Florida Statutes.

PRELIMINARY STATEMENT

This matter began on April 8, 1993, when petitioner, Department of Transportation, denied a request by respondent, Suddath Van Lines, Inc., that it reconsider a fine imposed on respondent for allegedly violating Section 316.545, Florida Statutes. More specifically, respondent had previously been cited on February 16, 1993, for operating a truck in Monroe County, Florida, without proper registration and exceeding legal weight limitations by 18,660 pounds.

For this violation, petitioner was required to pay a fine in the amount of

$933.00, or five cents for each excessive pound.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the proposed agency action. The matter was referred by petitioner to the Division of Administrative Hearings on July 27, 1993, with a request that a Hearing Officer be assigned to conduct a hearing. By agreement of the parties, the matter was

heard by telephone on November 4, 1993. Rick Schroeder, respondent's assistant vice-president for training and development, was authorized to appear as a qualified representative for respondent.

At final hearing, petitioner presented the testimony of Rick Schroeder, respondent's assistant vice-president, and Jack Pelham, chief of the bureau of motor carrier services of the Department of Highway Safety and Motor Vehicles and accepted as an expert in motor vehicle registration laws of Florida. Also, it offered petitioner's exhibits J-N. All exhibits were received into evidence. Exhibit M is the deposition of Thomas J. Davanzo, the driver of respondent's truck. Respondent presented the testimony of Rick Schroeder and offered respondent's exhibits 1-3. All exhibits were received into evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner on November 22, 1993. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Respondent, Suddath Van Lines, Inc. (Suddath), operates a trucking firm engaged in the business of transporting household goods. The firm's address is 5266 Highway Avenue, Jacksonville, Florida. When operating a commercial motor vehicle (truck) on the roads and highways of this state, Suddath is subject to the vehicle registration requirements prescribed in Chapters 316 and 320, Florida Statutes. Those chapters are administered and enforced by petitioner, Department of Transportation (DOT).

   
   

2. Florida, but not New Jersey, is a member of the International Registration Plan (IRP) which governs the vehicle registration requirements of motor vehicles in member states. Under that plan, a motor vehicle operator in any participating state can register his vehicle in that state and engage in for-hire transporation in other participating states without further

   registration. For vehicles registered in non-participating (or non-apportioned) states, such as New Jersey, they must first obtain an IRP temporary operational permit before engaging in intrastate transportation in participating states, including Florida.

   
   

3. Florida and New Jersey are members of an agreement known as the Multistate Reciprocal Agreement Governing the Operation of Interstate Vehicles. This is an older multistate agreement governing only those motor vehicles engaged in interstate operations and is to be distinguished from the IRP described in finding of fact 2. Paragraph A. of Article I of the interstate agreement describes its purpose as follows:

   
   

   1. Purpose of the Agreement. It is the purpose of this agreement to grant reciprocity subject to exceptions noted herein, to contracting jurisdictions, as provided in this agreement, by the exemption from registration and payment of all fees and taxes in each other contracting jurisdiction when such vehicles are used in any type of

      interstate vehicle operation in any such other contracting jurisdiction. (Emphasis added)

      
      

      Paragraph E. of Article IV of the same agreement goes on to provide in relevant part as follows:

      
      

      E. Motor vehicles properly licensed by any one of the reciprocating jurisdictions, including trucks, tractors, trailers, and semi-trailers, operated in the transportation of property for-hire may be operated in the several jurisdictions without limitation as to the number of trips and without the payment of any motor vehicle fees whatsoever to the reciprocating jurisdictions when operated strictly interstate . . . (Emphasis added)

      
      

      Under the terms of the foregoing agreement, a motor carrier registered in the State of New Jersey can lawfully transport a shipment from another state to Florida without registering the vehicle. If, however, the vehicle engages in intrastate operations in Florida, it would then be subject to Florida registration requirements, and the agreement would offer no protection from the payment of fees and taxes.

      
      

4. On February 16, 1993, one of respondent's trucks was traveling in the southbound lane of State Road 5 in Monroe County, Florida. Around 9:30 a.m., a DOT weight and safety officer subjected the truck to a routine inspection at the weight scales in Plantation Keys, Florida. The vehicle, which was driven by Thomas Davanzo, carried a New Jersey tag and was registered in that state. In addition to other documents, the vehicle carried a "service agreement" indicating the truck was transporting a shipment of household goods from a Miami warehouse to Key West. The total gross weight of the truck was found to be 53,660 pounds, consisting of 10,680 pounds on the steering axle, 22,480 pounds on the drive tandem and 20,500 pounds on the rear tandem.

   
   

5. During the inspection on February 16, 1993, the officer noted that the vehicle was unregistered and had no valid trip permit. He also assumed, albeit incorrectly, that the truck was operating in intrastate commerce based on the information reflected in the service agreement. When a truck is operating without a valid IRP, the vehicle is authorized to carry a total gross load, including the weight of the vehicle, of only 35,000 pounds. For any pound in excess of that weight, DOT is authorized to impose a fine of five cents for each excessive pound. Therefore, respondent was fined $933.00, or five cents time 18,660 pounds. After respondent's appeal to the Commercial Motor Vehicle Review Board was denied, this proceeding ensued.

   
   

6. Respondent does not deny that its vehicle was unregistered or contend that the gross load was less than that specified on the citation. Rather, it contends the shipment was interstate in character and, pursuant to the multistate agreement, it was not subject to state vehicle registration requirements. In this respect, the evidence shows that the household goods being transported by respondent belonged to a member of the U. S. Navy who was being transferred from Brunswick, Maine to the Naval Air Station in Key West. The controlling document on the shipment was a U. S. Government bill of lading (GBL) and not the service agreement shown to the DOT officer. The goods had

   been initially transported from Maine to Miami, but because there was no storage space available in Key West until the government was able to accept shipment, they were placed in "storage in transit" (SIT) in a Miami warehouse. This was permissible under the GBL, which provided that "SIT not to exceed 90 days is authorized," and did not alter the character of the shipment. It is also noted that there is no language in the multistate agreement, either explicit or implicit, indicating that the vehicle loses its exemption from fees and taxes merely because the goods are temporarily placed in SIT before delivery to the final destination. After being placed in storage, a portion of the goods were later carried by one of respondent's trucks to Boca Raton, where they were transloaded (interlined) onto another truck operated by Davanzo, who was to carry them to Key West. Although the goods had previously come to rest temporarily at the Miami warehouse, they continued to retain their interstate character pursuant to the GBL until they were delivered to their final destination in Key West. This conformed with the intent of Suddath throughout the shipping process. Since the goods in question retained their interstate character, and no intrastate carriage occurred, the multistate agreement was controlling, and Suddath should not have been issued a citation.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

8. Petitioner bears the burden of proving by the preponderance of the evidence that a violation of the law occurred. Fla. Department of Transportation v. J.W.C. Company, Inc., 397 So.2d 778, 787 (Fla. 1st DCA 1981).

   
   

9. Petitioner has cited four statutes as being relevant to this controversy. First, Subsection 320.02(1), Florida Statutes, provides in pertinent part as follows:

   
   

   (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 in this state. . . .

   Paragraph 320.0715(2)(a), Florida Statutes, further provides in part as follows: (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 if full registration or proportional registration were obtained. A Florida trip permit shall expire 10 days after issuance. The cost of a trip permit shall be $30, payment of which shall exempt the vehicle from payment of Florida apportioned license plate fees during the term for which the 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.

   Also, Subsection 320.01(30), Florida Statutes, defines "intrastate" as a "vehicle movement from one point within a state to another point within the same state." Finally, Paragraph 316.545(2)(b), Florida Statutes, authorizes DOT to impose a fine on non-registered vehicles which exceed certain weight limitations.

   
   

10. This case turns on the narrow issue of whether respondent's vehicle was traveling in interstate or intrastate commerce. If it was traveling in interstate commerce, the multistate agreement was controlling, and respondent was exempt from registration requirements. Petitioner argues that since respondent's truck was traveling from Miami to Key West, and the service agreement presented to the DOT officer confirmed this itinerary, the shipment was intrastate in nature as defined in subsection 320.01(30). As noted in finding of fact 6, however, the GBL was the controlling document on the movement, and the goods were continuing to be transported in interstate commerce from Miami to Key West after temporarily being placed in SIT at a Miami warehouse. Thus, the vehicle was exempt from registration requirements by virtue of the multistate agreement. This is especially true since that agreement has no provision, either explicit or implicit, which holds that temporary storage in transit causes an interstate shipment to lose its exemption from fees and taxes. This being so, it is concluded that the shipment does not fall within the definition of subsection 320.01(30), the other cited statutes do not come into play, and the citation should be withdrawn.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order withdrawing the citation. DONE AND ENTERED this 2nd day of December, 1993, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 2nd day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4205

Petitioner:

1-7. Partially accepted in findings of fact 4 and 5.

8. Rejected as being contrary to the evidence. 9-11. Partially accepted in finding of fact 2.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, not supported by the evidence, cumulative, or a conclusion of law.

COPIES FURNISHED:

Cindy S. Price, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458

Mr. Rick Schroeder Post Office Box 60069

Jacksonville, Florida 32236

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Attn: Eleanor F. Turner, Mail Station 58

Thornton J. Williams, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0458

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: 93-004205

Orders for Case No: 93-004205