Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by John D. C. Newton, II, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Dismissal, a copy of which is attached, and incorporated by reference, in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Respondent, Wild Hogs Scooters and Motorsports, LLC, be granted a license to sell motorcycles manufactured by Astronautical Bashan Motorcycle Manufacturer, Co., Ltd. (BASH) at 1805 West Fairbanks Avenue, Winter Park (Orange County), Florida 32789, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed April 20, 2012 8:11 AM Division of Administrative Hearings DONE AND ORDERED this _]4 thday of April, 2012, in Tallahassee, Leon County, Florida. Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 19th day of April, 2012. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/re Copies furnished: R. Craig Spickard, Esquire Kurkin Forehand Brandes, LLP Suite 1B 800 North Calhoun Street Tallahassee, Florida 32303 N Meiredith Huang Peace Industry Group (USA), Inc. 6600 B Jimmy Carter Boulevard Norcross, Georgia 30071 Jonathan Rupp Wild Hogs Scooters and Motorsports 1805 West Fairbanks Avenue Winter Park, Florida 30071 John D. C. Newton, I Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
The Issue 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?
Findings Of Fact 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. The vehicles were weighed. One weighed 76,000 pounds, and the other weighed 76,020 pounds. 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. 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. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
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
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.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: 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). 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. 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: 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. 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. 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. 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.
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.
Findings Of Fact National Freight is a trucking business. It currently uses 123 trailers in Florida which are longer than 48 feet, the length limitation set by Section 316.515, Florida Statutes. These trailers may operate in Florida only with a special permit issued by DOT pursuant to Section 316.550, Florida Statutes. In 1981, when National Freight began operations in Florida, a special permit was required from DOT only if the tractor-trailer combination exceeded 55 feet in length. At that time, DOT's practice was to routinely issue special permits to tractor-trailer combinations which exceeded 55 feet in length but did not exceed 65 feet in length. DOT issued special permits to a number of National Freight's vehicles in 1981 based upon a showing that the tractor-trailer combination exceeded 55 feet but not 65 feet in length. These permits were renewed in 1982 based upon this same showing. In 1983, National Freight was orally notified by DOT that a special permit would no longer be required for an overlength tractor-trailer combination, only for an overlength trailer, and that an overlength trailer must have been registered and operating in Florida prior to December 1, 1982, to be eligible for a special permit. DOT never promulgated any rule or prepared any written guidelines specifying these permit requirements. DOT expressed its policy of using Section 316.515(3)(b), Florida Statutes, as a guide for issuing special permits under Section 316.550. While DOT expressed this policy at the formal hearing, two weeks prior to the formal hearing, a contrary policy was expressed by Jack Roberts in his deposition. Specifically, Roberts stated at that time that Section 316.515(3)(b) removed DOT's discretion under Section 316.550. Under DOT's interpretation of Section 316.515(3)(b), as expressed at formal hearing, only those vehicles which were registered and operating in Florida as of December 1, 1982, should be issued special permits under Section 316.550. On September 16, 1983, after discussing the new permitting requirements by telephone with Billy Berry, DOT's State Highway Permits Engineer, Hal Kaplan sent DOT a list of additional overlength trailers National Freight had intended to use in Florida. On September 19, 1983, National Freight supplied DOT with documentation that a number of these trailers had been ordered from the manufacturer in October, 1982, prior to the December, 1982, permitting deadline. One hundred one (101) trailers were identified on the list supplied by National Freight, although one vehicle serial number was incorrect and that trailer was stricken from the list by DOT. Of the remaining 100 trailers, 53 had been ordered new from the manufacturer in October, 1982, and 47 were registered in New Jersey ,and used between several different states, including some use in Florida. At all material times, Florida and New Jersey were both party to a "Multistate Reciprocity Agreement." Among other things, this Agreement exempts contracting jurisdictions from vehicle registration requirements in other participating jurisdictions when those vehicles are used in any type of interstate operation. On September 28 or 29, 1983, Hal Kaplan and Billy Berry met to discuss the documentation supplied by National Freight and the permitting status of the 100 additional overlength trailers. DOT was advised at that time that none of the 100 additional trailers were yet available for use in Florida and that National Freight thus could not have met the permitting deadline with respect to any of those trailers. National Freight was told that DOT would consider the documentation showing that the trailers had been ordered prior to the permitting deadline for intended use in Florida in determining whether it would issue permits for the additional trailers. In October, 1983, DOT issued special permits for all 100 additional trailers. These permits were subsequently renewed in October, 1984. After the permits were issued, it cost National Freight approximately $60,000 to bring the 100 additional trailers into Florida. National Freight would not have incurred this expense had the trailers been denied Florida permits, and it acted in reliance upon DOT's issuance of the permits, reasonably assuming from DOT's action that the vehicles were permittable. On January 16, 1985, in response to an inquiry concerning the validity of National Freight's special permits, DOT notified National Freight by Certified Mail that permits had been issued to the additional overlength trailers "with the understanding that they would be operating and registered in Florida prior to July 1, 1983." The letter requested National Freight to supply proof of registration prior to that date and stated that the permits were subject to cancellation if proof of timely registration was not received. When National Freight was unable to supply the requested information, DOT initiated an administrative proceeding to revoke the 100 permits. After a formal administrative hearing, a recommended order was entered recommending against revocation. DOT later dismissed the proceeding as moot. (DOAH Case No. 85-1362) By letters dated September 19 and October 15, 1985, National Freight applied for a second renewal of its special permits. In its October letter, National Freight acknowledged that 100 of the permits sought to be renewed were for trailers which had not been registered and operating in Florida before December 1, 1982, but had been offered for use in Florida before that date. The letter further stated that the 100 permits had been originally issued in 1983 based upon proof that the permitted vehicles had been ordered before December 1, 1982, and that the permits had been routinely renewed in 1984. Renewal for 1985 was requested on this same basis. DOT denied renewal of the 100 permits by letter dated October 16, 1985. The sole reason for denial was National Freight's failure to provide proof that the 100 trailers for which these permits are sought were registered and operating in Florida on or before December 1, 1982. Each of the 100 trailers, when used in a tractor- trailer combination, is over 55 feet but less than 65 feet in length. Each would thus have qualified for a special permit under DOT's permitting practice prior to 1983.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation grant National Freight's application for renewal of special permits for the operation of the 100 tractor- trailers identified therein. DONE AND ENTERED this 26th day of May, 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0374 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, National Freight, Inc. Petitioner's proposed findings of fact 1-16 are adopted in substance as modified in Findings of Fact 1-16. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Transportation Respondent failed to file proposed findings of fact. COPIES FURNISHED: Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 W. Douglas Hall, Esquire Nancy G. Linnan, Esquire Carlton, Fields, Ward, Emmanuel, Smith Cutler and Kent, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Charles G. Gardner, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue The issues in this case concern the question of whether Respondent is subject to the payment of a $2,078 fine for violation of Section 316.545, Florida Statutes. That statutory provision relates to operation of a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On April 9, 1990, a commercial vehicle operated by Respondent, as carrier, was stopped and inspected by Petitioner's inspector Deborah Charlene Andrews. This inspection took place in Jackson County, Florida. The commercial vehicle operated by Bobby Charles Alphin was weighed. It was determined that the gross vehicle weight was 76,560 pounds. Before entering Florida the commercial vehicle in question had been issued a fuel use trip permit effective April 8, 1990 through April 18, 1990. By contrast the commercial vehicle did not have either an apportioned, 10-day or single-trip vehicle registration which would allow it to operate in Florida on April 9, 1990. A copy of the fuel use emergency trip permit referred to before is found as Petitioner's Exhibit No. 1, admitted into evidence. A copy of the apportioned vehicle registration and identification cab card for the vehicle may be found as Petitioner's Exhibit No. 2, admitted into evidence. It does not reflect registration in Florida in the apportionment. Florida records do not reveal that a 10-day temporary International Registration Plan (I.R.P.) trip registration had been issued or a single trip permit issued registering the commercial vehicle in question. In the absence of such a registration allowing the trip in Florida, the inspector issued a trip permit registration upon the payment of a $30.00 fee as referred to in Petitioner's Exhibit No. 4, admitted into evidence. This exhibit is a copy of the I.R.P. trip permit. The trip permit that was issued allowed operation in Florida for 10 days. A copy of the load report and field receipt executed by the inspector may be found as Petitioner's Exhibit No. 3, admitted into evidence, which reflects the gross vehicle weight and the fact that this exceeded the legal weight of 35,000 pounds and the assessment a $.05 per pound fine for the weight above the legal weight. That fine is $2,078 for being overweight in the amount of 41,560 pounds. Again that overweight amount is derived in subtracting the allowed weight of 35,000 pounds from the gross vehicle weight of 76,560 pounds.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which fines the Respondent in the amount of $2,078 for violation of Section 316.545, Florida Statutes. DONE and ENTERED this 12th day of March, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1991. APPENDIX The facts as proposed by the Petitioner are subordinate to fact found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Philip R. Polachek, General Manager Little Donkey Enterprises, Inc. Post Office Box 822 Estacada, OR 97023 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact Respondent is engaged in the business of trucking, and has its principal Florida office in Orlando. Respondent utilizes truck tractor and semitrailer combinations. Some of its semitrailers exceed 48 feet in length. One hundred of the National Freight semitrailers which exceed 48 feet in length operate with permits issued to National Freight by Petitioner in October, 1983. These 100 permits are assigned numbers M57683 through M57779 and M57678 through M57680. In 1983, the Florida Legislature amended Section 316.515(3)(b), Florida Statutes (F.S.). The amendment, which became effective July 1, 1983, prohibited the operation of semitrailers over 48 feet in length except for those in operation on Florida highways as of December 1, 1982. Petitioner's representative initially stated that Respondent and at least one other trucking company would be allowed to obtain operating permits for the oversize semitrailers provided they were on order as of December 1, 1982, and in operation on Florida highways by July 1, 1983. This policy was unwritten and has never been formalized by rule. In September, 1983, Petitioner informally requested Respondent to furnish a list of such trailers assigned to Florida. Respondent's list of the 100 trailers at issue here was provided and the permits were subsequently issued. None of the 100 trailers listed by Respondent were in Florida on July 1, 1983. Although Respondent's reply did not state they were in operation, neither did the reply suggest these trailers had not been delivered by July 1, 1983. Petitioner did not require proof of registration at that time. However, by letter of January 16, 1985, Petitioner demanded such proof, which Respondent was unable to provide. Petitioner's letter of January 16, 1985, also advised Respondent that its permits would be revoked if the proof of registration were not provided. This letter and Respondent's demand for hearing are the basis for these proceedings.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner rescind its stated intent to revoke Permits M57683 through M57779 and M57678 through M57680. DONE and ENTERED this 13th day of August, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1985.
