STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVE HOWARD, )

)

Petitioner, )

)

vs. ) Case No. 97-4522

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 16, 1997, at Key Largo, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steve Howard, pro se

Post Office Box 3013

Key Largo, Florida 33037

For Respondent: Kelly A. Bennett, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether Respondent properly fined Petitioner the sum of

$647.00 for the reasons set forth in the Load Report Citation Number 029011M, issued March 5, 1997.

PRELIMINARY STATEMENT

On March 5, 1997, Jorge Fernandez Delara, a motor carrier

compliance officer employed by Respondent, issued to Petitioner Load Report Citation Number 029011M on March 5, 1997, which included a fine against Petitioner in the amount of $647.00.

Petitioner's timely challenge of the fine was referred to the Division of Administrative Hearings, where it was assigned DOAH Case Number 97-4522.

At the formal hearing, Petitioner testified on his own behalf and presented the additional testimony of Officer Delara. Petitioner offered two exhibits, one of which was accepted into evidence. Respondent's witnesses were Officer Delara and Jack Pelham, an employee of the Department of Transportation, who is experienced in the registration of motor vehicles. Respondent presented one exhibit, which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the owner of Keys Marine Drilling, which operates in Monroe County, Florida.

2. Petitioner uses a large floating pile driver in his business. This pile driver is usually stored on Petitioner's property until it is needed on the job site. The pile driver usually remains on the job site until the job is completed.

3. At all times pertinent to this proceeding, Petitioner was the owner and operator of a 1978 Ford van. This van had been licensed as a “collectible” vehicle and had a gross vehicle weight of 10,000 pounds.

4. On March 5, 1997, Petitioner was driving his van on

   
   

   U. S. 1 in Monroe County. Petitioner was using his van to tow the floating pile driver, which had been placed on a trailer.

5. On March 5, 1997, Jorge Fernandez Delara, a motor vehicle compliance officer employed by Respondent observed that Petitioner did not stop at a weigh station at Plantation Key. Officer Delara immediately thereafter stopped Petitioner.

6. On the instructions of Officer Delara, Petitioner returned to the weigh station.1

7. Officer Delara determined that Petitioner had registered his van as a collectible vehicle.2 This registration would not permit Petitioner's vehicle to have a gross vehicle weight in excess of 10,000 pounds.

8. Officer Delara weighed Petitioner’s van, trailer, and the load on the trailer, and determined that the combined weight was 22,940 pounds.

9. Thereafter, Officer Delara issued to Petitioner the

   citation that is at issue in this proceeding. Officer Delara correctly determined that Petitioner’s van's registration was not proper.3 He determined that Petitioner’s rig was 12,940 pounds overweight. He thereafter fined Petitioner the sum of $647.00,

   which is calculated, pursuant to Section 316.545(2)(b), Florida Statutes,4 by multiplying the number of pounds the rig was overweight by $0.05.

   CONCLUSIONS OF LAW

   
   

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

11. Section 316.003(66), Florida Statutes, defines the term "commercial motor vehicle," in pertinent part, as follows:

    (66) COMMERCIAL MOTOR VEHICLE - Any self- propelled or towed vehicle used on the public highways in commerce to transport passengers or cargo, if such vehicle:

    1. Has a gross vehicle rating of 10,000 pounds or more; . . .

       
       

12. Because Petitioner was using the van to transport a piece of equipment that is used in his business, his argument that his van was not used in commerce is without merit.

13. Petitioner established that he does not transport passengers or freight for hire. His argument that his van should not be considered a commercial motor vehicle because it is not used for either purpose is not persuasive. The definition of the term "commercial motor vehicle" found at Section 316.003(66), Florida Statutes, is met if the vehicle is operated in commerce, is used to transport cargo, and has a gross vehicle weight of 10,000 pounds or more. The term "cargo" is commonly defined to mean the freight carried by a vehicle. See The American Heritage Dictionary of the English Language. The floating pile driver was

    the van's freight or cargo. There is no requirement, as Petitioner asserts, that he has to be a common carrier being paid by a third party to haul the floating pile driver before the pile driver can be considered cargo. It is concluded that the floating pile driver being towed by Petitioner is "cargo" within the meaning of Section 316.003(66), Florida Statutes, and that at the time pertinent to this proceeding, Petitioner's van met the statutory definition of a commercial motor vehicle.

14. Officer Delara correctly determined that Petitioner's rig was overweight, and he properly calculated the amount of the fine that should be assessed for that violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order that sustains the fine imposed against Petitioner.

DONE AND ENTERED this 10th day of February, 1998, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1998.

ENDNOTES

1/ Petitioner was less than a mile from the weigh station when he was stopped by Officer Delara. Pursuant to Section 316.545(1), Florida Statutes, Officer Delara had the authority to require Petitioner to return to the weigh station.

2/ This was an improper registration because the collectible category is available for private use vehicles that weigh less than 5,000 pounds. Petitioner’s van weighed 5,648 pounds according to the van’s vehicle registration, which put the van over the maximum weight for a collectible. Additionally, Petitioner used his vehicle to move equipment to and from his job sites, which placed his van in the commercial motor vehicle category, as that term is defined by Section 316.003(66), Florida Statutes.

3/ The van was not properly registered. Petitioner asserted that he registered the van as a collectible at the insistence of an employee of the tag office. That employee did not testify at the formal hearing. Out of court statements made by that employee to Petitioner are hearsay that cannot be the basis for findings of fact. See Section 120.57(1)(c), Florida Statutes.

There was no evidence that Petitioner attempted to register the van in a category that would authorize a combined weight in excess of 10,000 pounds. Petitioner would have been liable for the fine that was imposed against him unless he had registered the van in a category that authorized a combined weight of 22,940 pounds or more.

4/ Section 316.545(2)(b), Florida Statutes, provides, in pertinent part, as follows:

1. The officer shall inspect the license plate or registration certificate of the commercial vehicle , as defined in

s. 316.003(66), 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. In those cases where the commercial vehicle, as defined in s. 316.003(66), is being operated over the highways 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 scaled weight which exceeds . . . 10,000 pounds on laden straight trucks or straight truck-trailer combinations

. . . .

COPIES FURNISHED:

Steve Howard, pro se Post Office Box 3013

Key Largo, Florida 33037

Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

1 Petitioner was less than a mile from the weigh station when he was stopped by Officer Delara. Pursuant to Section 316.545(1), Florida Statutes, Officer Delara had the authority to require Petitioner to return to the weigh station.

2 This was an improper registration because the collectible category is available for private use vehicles that weigh less than 5,000 pounds. Petitioner’s van weighed 5,648 pounds according to the van’s vehicle registration, which put the van over the maximum weight for a collectible. Additionally, Petitioner used his vehicle to move equipment to and from his job sites, which placed his van in the commercial motor vehicle category, as that term is defined by Section 316.003(66), Florida Statutes. Petitioner's van had a gross vehicle weight rating of 10,000 pounds.22

3 The van was not properly registered. Petitioner asserted that he registered the van as a collectible at the insistence of an employee of the tag office. This employee did not testify at the formal hearing. Out of court statements made by this employee to Petitioner are hearsay that cannot be the basis for findings of fact. See, Section 120.57(1)(c), Florida Statutes. There was no evidence that Petitioner attempted to register the van in a category that would authorize a combined weight in excess of 10,000 pounds. Petitioner would have been liable for a fine unless he had registered the van in a category that authorized a combined weight of 22,940 pounds or more.

4 Section 316.545(2)(b), Florida Statutes, provides, in pertinent part, as follows4:

(b) The officer shall inspect the license plate or registration certificate of the commercial vehicle , as defined in s. 316.003(66), 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. In those cases where the commercial vehicle, as defined in s. 316.003(66), is being operated over the highways 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 scaled weight which exceeds … 10,000 pounds on laden straight trucks or straight truck-trailer combinations …

Docket for Case No: 97-004522

Orders for Case No: 97-004522