STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 99-1161

)

ROYAL TRUCKING COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this cause on June 3, 1999, in Tallahassee, Florida, before the Division of Administrative Hearings, by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Thomas R. Calton, o/b/o

Royal Trucking Company 1323 North Eshman Avenue Post Office Box 387

West Point, Mississippi 39773

For Respondent: Kelly A. Bennett, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUE

The issue is whether Petitioner correctly assessed Respondent with a penalty in the amount of $4,754 based on the overweight permit violations set forth in Load Report Citation Number 141945M.

PRELIMINARY STATEMENT

On October 8, 1998, Petitioner Department of Transportation (Petitioner) issued Load Report Citation Number 141945M. Said citation assessed Respondent Royal Trucking Company (Respondent) with a penalty in the amount of $4,754 based on violations of Overweight Permit Number QU025021.

By letter dated November 30, 1998, Respondent requested Petitioner's Commercial Motor Vehicle Review Board to reduce the assessment. Petitioner denied Respondent's request by letter dated January 15, 1999.

In a letter dated January 26, 1999, Respondent requested an administrative hearing. Petitioner referred this request to the Division of Administrative Hearings on March 10, 1999.

The undersigned issued a Notice of Hearing, scheduling this case for formal hearing on June 3, 1999. At the hearing, Petitioner presented the testimony of three witnesses and offered two exhibits which were accepted into evidence. Respondent presented the testimony of one witness and offered one exhibit which was accepted into evidence.

A Transcript of the proceeding was filed on June 21, 1999. Petitioner filed a Proposed Order on June 23, 1999. Respondent did not file a proposed order.

FINDINGS OF FACT

1. On or about September 22, 1998, Respondent requested an overweight trip permit from Petitioner. Respondent needed the

   permit to haul a kiln section using a truck tractor and a semi- trailer from the Alabama state line, along I-10 and I-75, to Newberry, Florida. Respondent's permit request included the specific axle spacings and axle weights of its vehicle and load together with other criteria necessary for the permit.

2. On October 7, 1998, Petitioner issued Respondent an overweight trip permit, Permit Number QU025021. The permit was effective October 7, 1998, through October 11, 1998. The permit incorporated the axle spacings and axle weights of Respondent's vehicle and load as additional requirements for the permit. The permit stated that it could be voided if any of its terms or conditions were altered or violated.

3. Without a permit, Respondent's vehicle and load would have been limited to a legal weight of 80,000 pounds. The permit allowed a gross weight of 180,420 pounds.

4. On October 8, 1998, Respondent's loaded vehicle stopped at Petitioner's truck weighing station on I-10 near Sneads, Florida. The truck tractor and semi-trailer with its cargo weighed 175,080 pounds. In other words, Respondent's loaded vehicle weighed 95,080 pounds over the legal limit for a truck tractor and loaded semi-trailer without an overweight permit.

5. The Florida Department of Agriculture inspects Petitioner's scales at roadside truck weighing stations to ensure that they are accurate within .2 percent tolerance. There is no

   evidence that the scales at issue here were improperly calibrated.

6. Petitioner's Weight and Safety Inspector, John Miles, requested Respondent's driver to present a valid overweight permit. The truck driver presented Inspector Miles with Permit Number QU025021.

7. Inspector Miles then requested the driver to park the vehicle in a straight line. Next, Inspector Miles hooked one end of the measuring tape on a railroad iron and held the other end while measuring the axle spacings.

8. Inspector Miles determined Respondent had been operating its loaded vehicle with the following axle spacings:

   from 1 to 2 = 15'5"

   from 2 to 3 = 4'5"

   from 3 to 4 = 13'3"

   from 4 to 5 = 4'7"

   from 5 to 6 = 48'8"

   from 6 to 7 = 4'7"

   from 7 to 8 = 4'7"

   from 8 to 9 = 10'11"

   from 9 to 10 = 4'6"

   
   

9. Permit Number QU025021 authorized Respondent to operate the vehicle and load with the following axle spacings:

   from 1 to 2 = 16'1"

   from 2 to 3 = 4'5"

   from 3 to 4 = 14'8"

   from 4 to 5 = 4'5"

   from 5 to 6 = 44'0"

   from 6 to 7 = 4'5"

   from 7 to 8 = 4'5"

   from 8 to 9 = 14'8"

   from 9 to 10 = 4'5"

10. Inspector Miles issued Respondent Load Citation Report Number 141945M. That citation states that Permit Number QU025021 is void due to incorrect axle spacing on the subject vehicle.

    The citation assesses Respondent with an administrative fine in the amount of $4,754 or five cents per pound for every pound over 80,000 pounds.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

12. Sections 316.535(4) and 316.535(5), Florida Statutes, restrict the overall gross weight of any vehicle or combination of vehicles to 80,000 pounds.

13. Section 316.545 (3), Florida Statutes, states as follows, in pertinent part:

    (3) Any person who violates the overloading provisions of this chapter shall be conclusively presumed to have damaged the highways of this state by reason of such overloading, which damage is hereby fixed as follows:

    
    

    * * *

    
    

    (b) Five cents per pound for each pound of weight in excess of the maximum herein provided when the excess weight exceeds 200 pounds.

    
    

14. Section 316.550, Florida Statutes, authorizes Petitioner to issue special permits for overweight vehicles or

    loads. Section 316.550(9), Florida Statutes, states as follows, in pertinent part:

    (9) Whenever any motor vehicle . . . exceeds any weight or dimensional criteria or special operational or safety stipulation contained in a special permit issued under the provisions of this section, the penalty assessed to the owner or operator shall be as follows:

    
    

    * * *

    
    

    1. For violation of any special condition that has been prescribed in the rules of the Department of Transportation and declared on the permit, the vehicle shall be determined to be out of conformance with the permit and the permit shall be declared null and void for the vehicle, and weight and dimensional limits for the vehicle shall be as established in s. 316.515, 316.535, or 316.540, whichever is applicable, and:

       1. For weight violations, a penalty as provided in s. 316.545 shall be assessed for those weights which exceed the limits thus established for the vehicle . . . .

15. In this case, Respondent was operating its loaded vehicle with axle spacings which did not conform to the specified axle spacings in Permit Number QU025021. Therefore, Petitioner properly declared the permit void and assessed Respondent a penalty in the amount of $4,754.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED

That Petitioner enter a final order assessing Respondent a penalty in the amount of $4,754.

DONE AND ENTERED this 7th day of July, 1999, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1999.

COPIES FURNISHED:

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

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas R. Calton, Manager Royal Trucking Company Post Office Box 387

West Point, Mississippi 39733

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.

Docket for Case No: 99-001161

Orders for Case No: 99-001161