STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 98-2182

) TALQUIN VAULT AND SEPTIC CO., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on August 19, 1998, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes.

The hearing location was the offices of the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Kelly A. Bennett, Esquire

Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Fred Strauss, pro se

Talquin Septic Tank Post Office Box 559 Midway, Florida 32343

STATEMENT OF THE ISSUE

Should Respondent be required to pay Petitioner Twenty-Five Hundred dollars ($2,500.00), as a civil penalty for causing or

permitting an out-of-service driver to operate a commercial motor vehicle (vehicle)?

PRELIMINARY STATEMENT

On March 6, 1998, Respondent was cited for an alleged violation of Section 316.3025, Florida Statutes, and the aforementioned civil penalty was imposed. Pursuant to the opportunity set forth in Section 316.545, Florida Statutes, Respondent contested the violation before the Commercial Motor Vehicle Review Board (the Board) in a meeting held April 9, 1998. On April 14, 1998, the Board announced the intended disposition of the case by refusing to refund the civil penalty imposed for allowing Respondent's driver to violate an out-of-service order. Subsequently, Respondent through its owner and president,

Fred Strauss, requested a formal hearing to contest the imposition of the civil penalty that had been upheld through the preliminary determination made by the Board.

At hearing, Petitioner presented the testimony of Bryant Gay, Motor Vehicle Compliance Officer. Petitioner's Exhibits 1A through 1D, and 2A through 2B were admitted.

Respondent presented the testimony of Dexter Caldwell Kenon, Dan Strauss, and Fred Strauss.

Pursuant to a request from counsel for Petitioner, official recognition is given to provisions within 49 C.F.R.s.383 and 391, and Chapters 316 and 324, Florida Statutes.

A hearing transcript was filed on August 18, 1998. The parties were provided the opportunity to submit a proposed recommended order no later than September 8, 1998. Petitioner took advantage of that opportunity; Respondent did not.

The proposed recommended order of the Petitioner has been considered in preparing the recommended order.

FINDINGS OF FACT

1. Bryant Gay is a Motor Vehicle Compliance Officer who works for Petitioner. He was on duty on March 6, 1998. On that date, consistent with his employment, he stopped a commercial motor vehicle owned by Respondent and operated by Danny Holton. The stop was made in Gadsden County, Florida, on U.S. 90. The time of the stop was approximately 5:00 p.m. The basis for this stop was the suspicion that there was a violation of the weight axle law, premised upon Officer Gay's observation of the truck tires and springs.

2. Once the stop was made the truck was weighed and was found to be of legal weight. But a check of Mr. Holton's driver's license revealed that the license did not carry the proper endorsements to operate a tank vehicle (such as Respondent's) of a capacity of more than one thousand gallons. As a consequence, Mr. Holton was cited for operating the vehicle without the proper driver's license and was fined one- hundred dollars ($100.00), pursuant to citation. Officer Gay

   also advised Mr. Holton that Mr. Holton was being placed out-of-service.

3. After placing Mr. Holton out-of-service, Dan Strauss, the son of Fred Strauss, who is the owner and president of Respondent, was contacted. At that time Dan Strauss was serving

   
   

   as the acting representative of the Respondent in Fred Strauss' absence. Dan Strauss came to the scene of the stop and paid the

   $100.00 civil penalty for Mr. Holton's violation of the driver's license requirement that had been cited. Dan Strauss also brought a second driver to drive the subject vehicle back to Respondent's business premises. The second driver was allowed to return the subject vehicle based upon Officer Gay's belief that the second driver had the necessary license endorsements to operate the vehicle.

4. Nothing in the conversation held between Officer Gay and Dan Strauss, at the point in time when the $100.00 civil penalty was paid, and the truck placed in the custody of the second driver, could reasonably be interpreted by Dan Strauss to allow Mr. Holton to continue to operate the subject vehicle before obtaining appropriate license endorsements. Nor did the conversation create a reason to believe that such an operation by Mr. Holton, if discovered by Petitioner's officer, would again be met with a further citation not to exceed $100.00. Nonetheless, Dan Strauss made the business judgment, that a customer, who was

   in immediate need of assistance to deal with a failed septic system, should not be ignored, even in the circumstance where Mr. Holton would be called upon to drive the subject vehicle to provide the service. Thus, Dan Strauss, having been told by Officer Gay that Mr. Holton was out-of-service to operate the subject vehicle, dispatched Mr. Holton to provide the service to the customer.

5. At around 6:30 p.m., on March 6, 1998, Officer Gay saw Mr. Holton pulling the subject vehicle onto U.S. 27, in Gadsden County, Florida, and stopped the vehicle again. On this occasion, Officer Gay imposed a further citation in the amount of a civil penalty of twenty-five hundred dollars ($2,500.00), against Respondent, for permitting Mr. Holton to operate the subject vehicle when Mr. Holton had been declared out-of-service. When contacted about the additional citation, Dan Strauss told Officer Gay that he understood that Mr. Holton had been placed out-of-service as a driver of the subject vehicle; however,

   Dan Strauss told Officer Gay, that he, Dan Strauss, had assumed that if Mr. Holton was caught operating the vehicle it would only lead to another $100.00 civil penalty.

6. No facts presented at hearing mitigate the twenty-five hundred dollar ($2,500.00) civil penalty for allowing an out-of- service driver to operate Respondent's vehicle.

   CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this case consistent with Sections 120.569 and 120.57(1), Florida Statutes.

8. Respondent contests the imposition of the twenty-five hundred dollar ($2,500.00) civil penalty for allegedly allowing its driver to operate the subject vehicle while the driver was out-of-service. Petitioner must prove such violation by a preponderance of evidence.

   
   

9. Section 316.3025(2), Florida Statutes, makes a person who causes or permits an out-of-service driver to operate a commercial motor vehicle, subject to the imposition of a civil penalty in the amount provided by 49 C.F.R.s.383.53. According to 49 C.F.R. s.383.53, the amount of that civil penalty is not less than twenty-five hundred dollars ($2,500.00), and not more than ten-thousand dollars ($10,000.00). Petitioner has proven by a preponderance of the evidence that Dan Strauss, as the authorized representative of Respondent, caused and permitted

Mr. Holton, who was out-of-service, to operate the subject vehicle. For that reason Respondent is subject to the twenty- five hundred dollar ($2,500.00) civil penalty that was called for in the citation.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which imposes a twenty-five hundred dollar ($2,500.00) civil penalty against Respondent.

DONE AND ENTERED this 21st day of September, 1998, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 21st day of September, 1998.

COPIES FURNISHED:

Kelly A. Bennett, Esquire Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Fred Strauss Talquin Septic Tank Post Office Box 559

Midway, Florida 32343

Thomas F. Barry, Secretary Department of Transportation Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

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.

Docket for Case No: 98-002182

Orders for Case No: 98-002182