Findings Of Fact On or about September 11, 1989, a commercial, dump truck owned by Petitioner, Alamazan Brothers Trucking, Inc., was travelling on State Road 807. Mr. Michael Roberts, Safety and Hazardous Materials Officer for Respondent, Department of Transportation, noticed that the truck did not have the required identification on the door and stopped the truck for further investigation. After the truck stopped, Mr. Roberts noted that the truck possessed an expired temporary license tag, and the driver did not have a valid registration for the truck. Mr. Roberts, then, weighed the truck with his portable scale and calculated a gross weight of 65,900 pounds. Mr. Roberts gave the driver the opportunity to contact the owner of the truck about the registration and, in accordance with policy of the Department, allowed the owner over one hour to produce a valid registration. A representative of the owner appeared and showed Mr. Roberts a duplicate registration certificate purchased the same day as the incident which indicated that the authorized gross weight for the truck was 24,680 pounds. Mr. Roberts made the determination that the registration was not valid at the time of the stop and imposed a fine for overweight of $1,545. The fine was calculated for the amount of the gross weight in excess of 35,000 pounds times five cents per pound. Existent law establishes that, for the purposes of calculation of a penalty such as the one at issue, the authorized gross weight for an unregistered vehicle is 35,000 pounds. An additional $50 was imposed as the fine for not having the required identification on the door of the truck. The total penalty of $1,595 was paid under protest. However, Petitioner did, in fact, have a valid registration on the day of the stbp. Through administrative delay, the registration certificate had not been mailed to Petitioner. On or around September 7, 1989, Petitioner purchased the truck and a temporary tag was issued to Petitioner by the dealer from which he purchased the truck. At that time, an application for registration was made to the Department of Highway Safety and Motor Vehicles. The application was for a registration authorizing a gross weight of 64,000 pounds. Petitioner had not received the permanent tag or registration by the date the stop occurred. After Petitioner was alerted at the stop, Petitioner obtained a duplicate registration within the time allotted to him by Respondent. This duplicate, the one shown to Mr. Roberts on the day of the stop, indicated an authorized gross weight of 24,680 pounds, an obvious typographical error. The gross weight did not match the gross weight applied for, instead, it duplicated the amount of the empty weight into the gross weight category. On September 13, 1989, Petitioner returned the form to the issuer and requested a corrected duplicate registration. The second duplicate also was in error. This time the form indicated the correct gross weight of 64,000 pounds, but, also, repeated that gross weight amount in the empty weight category. At the hearing, Petitioner also presented the application for registration which indicated it had applied for and was taxed for a gross weight of 64,000 pounds. It was only due to administrative delay that the correct registration was not presented at the time of the stop. However, no competent evidence was received which indicated that the truck did possess the required identification on the door, and Mr. Robert's testimony about the lack of such identification is deemed credible. Although the correct gross weight for which Petitioner is licensed is 64,000, his load at the time of the stop was 65,900 or 1,900 in excess of his 64,000 pound authorized amount. At five cents a pound his penalty for overweight should be $95.00 and not $1,545.00. The $95.00 plus the $50.00 for the failure to display the required identification yields a corrected fee of $145.00 and a refund due to Petitioner of $1,400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation issue a Final Order correcting the fine imposed on Petitioner, establishing the appropriate fine at $145.00 and refunding $1,400 to Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990. JANE C. HAYMAN 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 5th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2088 The following represents the rulings on the proposed findings of fact submitted by the parties. The rulings are by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact portion of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate. RESPONDENT Adopted in relevant part in paragraphs 1,2 and 3. Adopted in relevant part in paragraphs 4,5 and 9. Adopted in relevant part in paragraphs 6,7,8 and 10. COPIES FURNISHED: Dewey H. Varner, Esquire Varner, Cole & Seaman 2601 Tenth Avenue, North, Suite 410 Lake Worth, Florida 33461 Vernon T. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scanlan Interim General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Should Petitioner impose a fine on Respondent in the amount of $1,902.00 for operating an over-weight motor vehicle on a bridge with weight limitations?
Findings Of Fact On January 6, 1995, a truck owned by Martin Leasing was operating on State Road 520 in Orange and Brevard Counties, Florida. The driver was William Edward Bednar. The truck was approximately 70 feet long, with five axles. On that date, Officer Charles Hunter of the Motor Carrier Compliance Division of the Department of Transportation observed Mr. Bednar cross a low weight limit bridge leaving Orange County and entering Brevard County, Florida. The weight limit for the bridge was 30,000 pounds. Officer Hunter stopped the Martin Leasing vehicle and had it weighed on nearby scales that were certified. The truck weighed 68,040 pounds. For that reason, Petitioner cited Respondent, pursuant to Section 316.545(3), Florida Statutes. As a consequence, a monetary assessment was levied against Respondent in the amount of $1,902.00, which represents a penalty related to the 38,040 pounds overweight times $.05 per pound. Volume 3: Bridge Load Rating, Permitting and Posting Manual, Florida Department of Transportation, states, in pertinent part: Weight limits to be shown on the posting signs at a bridge site, shall represent the gross vehicular weight (GVW) in tons for a maximum of three truck types. However, no more than one or two truck symbols may be needed. A graphic depiction of the general weight limit sign is shown on the Roadway and Traffic Design Standard Index No. 17357. The three truck types are as follows: Single unit trucks. (SU) Combination trucks with a single trailer. (C) Combination trucks with two trailers or a single unit truck with one trailer. (ST5) The single unit truck case will be the lowest operating rating for two axle (SU2), three axle (SU3) and four axle (SU4) trucks. This single unit truck will be represented on the weight limit sign by a two axle single unit truck silhouette. The operating rating GVW may exceed the legal limit GVW of one or more truck types. In this case, these specific truck types would be excluded when establishing the lowest permissible operating rating. For example if the operating rating for the SU2 truck was 16,300 kg (18 tons) then the SU2 truck would not be considered for posting since the legal limit for the SU2 truck is 15,400 kg (15 tons). The combination truck with one trailer will be the lowest permissible operating rating for three axle (C3), four axle (C4) and five axle (C5) trucks. This combination truck will be represented on the weight limit sign by a three axle combination truck silhouette (one trailer). The operating rating GVW may exceed the legal limit GVW of one or more truck types. In this case, these specific truck types would be excluded when establishing the lowest per- missible operating rating. For example if the operating rating for the C3 truck was 26,300 kg (29 tons), then the C3 truck would not be considered for posting since the legal limit for the C3 truck is 25,400 kg (28 tons). The combination truck with two trailers or a straight truck with one trailer will be governed by the operating rating for the single unit truck with one trailer (ST5). This combination truck will be represented on the weight limit sign by a silhouette of a two axle single unit truck pulling a two axle trailer. Based upon the above-referenced manual, a combination truck with one trailer, such as the Martin Leasing truck, would be depicted on the posting signs for weight limits by a silhouette on the sign that shows a three axle combination truck with one trailer, whether the truck operating on the road has three axles, four axles, or five axles. Rule 14-15.010, Florida Administrative Code, adopts the Manual on Uniform Traffic Control Devices, published by the United States Department of Transportation, Federal Highway Administration, 1988 Edition. That manual prescribes the size and character of the weight limit signs posted by Petitioner. Included on the sign are the three silhouettes that are referred to in the Petitioner's Manual for Bridge Load Rating, Permitting and Posting. In particular, the federal sign depicts a silhouette for the combination truck with one trailer, which silhouette has three axles. In addition, Petitioner publishes a booklet through its Motor Carrier Compliance Office. That booklet is entitled: Florida Department of Transportation Trucking Manual. It is a handbook or guide for operating trucks in Florida. It refers to the low-limit roads and bridges in Florida and to the portrayal of those bridges on low-limit signs that have been described in the prior manuals. The trucking manual states: Low Limit Roads and Bridges Due to age, condition, or design, some roads and bridges in Florida cannot carry the load limits allowed in this manual. Signs detailing these lower limits have been posted on such roads and bridges. . . . The maximum allowable weight is listed, in tons, beside the silhouette for each of the 3 classes of vehicles. The SINGLE-UNIT TRUCK silhouette includes all straight trucks, cranes and other single- unit special mobile equipment regardless of the number of axles. The TRUCK TRACTOR SEMI-TRAILER silhouette includes all truck tractor combinations regard- less of the number of axles. The SINGLE-UNIT TRUCK WITH ONE TRAILER in- cludes all MAXI-CUBE and TANDEM TRAILER combin- ations regardless of the number of axles. Please watch carefully for all load limit signs and obey them. The trucking manual gives an example of a weight limit sign with the truck silhouettes, to include the combination truck with one trailer, described in the trucking manual as a truck tractor semi-trailer. Under that description the Martin Leasing truck would be a tractor semi-trailer. Again, the trucking manual refers to the silhouette for a combination truck with one trailer to regulate any truck tractor combination in that configuration, regardless of the number of axles. Notwithstanding Petitioner's intention to depict a combination truck and single trailer with three axles on its signs, to inform truckers operating that configuration, whatever numbers of axles are found on the operating truck, Respondent takes the view that the failure to depict a five-axle truck and single trailer combination means that Respondent need not comply with the posted weight limits. That is an unreasonable interpretation. Respondent, through its driver, erroneously takes the view that the weight limits for the bridge in question depicted by signs with silhouettes showing single-unit trucks limited to 22,000 pounds; combination trucks with a single trailer limited to 30,000 pounds; and combination trucks with two trailers or a straight truck with one trailer limited to 36,000 pounds would not place Respondent on notice that its 68,040-pound truck, which was a combination with one trailer, should not have crossed the bridge, whatever the number of axles. Adequate warning was provided to Mr. Bednar concerning the approach to the low weight limit bridge. A weight limit sign, including the aforementioned information, was located nine miles prior to the bridge. The nine-mile sign was located immediately before the junction of State Road 520 and State Road 528. Mr. Bednar could have exited on State Road 528. A weight limit sign indicating "weight limit restriction ahead" was located closer to the bridge. A weight limit sign depicting the information and describing the opportunity for last road exit from State Road 520, before entering the bridge, was provided. The last exit sign referred to the junction between State Road 520 and County Road 532. Mr. Bednar could have existed County Road 532. Another weight limit sign was found within two miles of the bridge. The bridge itself was posted with the weight limits that have been described.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which imposes a $1,902.00 assessment against Respondent. DONE AND ENTERED this 20th day of February, 1996, 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 20th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3897 The following discussion is given concerning Petitioner's proposed findings of fact. Paragraphs 1-11 are subordinate to facts found. Paragraphs 12 and 13 are not necessary to the resolution of the dispute. COPIES FURNISHED: Murray M. Wadsworth, Jr. Assistant General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Tommy Martin Post Office Box 624 Yulee, FL 32097 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450
The Issue Whether a commercial motor vehicle owned by Respondent exceeded the posted weight when it crossed a "low limit" bridge in rural Brevard County, Florida on June 3, 1992, in violation of Section 316.545, Florida Statutes. Whether extenuating circumstances justifies the reduction or elimination of the proposed penalty for the alleged violation.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 316, Florida Statutes, which regulates the weight and load of commercial motor vehicles on the state highway system. State Road 520, in Brevard County, Florida, is a part of the state highway system, and title to the right-of-way for said highway is held in the name of the State. A bridge which crosses over the St. Johns River on State Road 520 (SR520) in Brevard County, Florida, had a weight limit of 80,000 pounds for motor vehicles until October 20, 1991. On that date, the maximum weight for vehicles was reduced to a limit of 56,000 pounds. On May 26, 1992, the weight limit was again reduced, and the Department posted a new weight limit for the bridge of 30,000 pounds. On June 3, 1992, a commercial motor vehicle owned by Respondent was traveling northbound on Interstate 95 (I-95). The vehicle exited I-95, proceeded westbound on SR 520, and crossed the bridge. After the vehicle crossed the bridge, it was stopped by a Department Transportation Officer, and taken to a nearby pit scale. The weight of the vehicle was accurately determined to be 56,140 ponds. The Transportation Officer then imposed a fine of $1,307.00 on the vehicle, based on 5 cents per pound above the posted weight limit of 30,000 pounds. The penalty was paid by M & M Truck Service, and the vehicle was permitted to proceed. M & M Truck Service sought a refund of the penalty from the Commercial Motor Carrier Review Board. The Board authorized a 50 percent refund under its policy providing for a 50 percent refund when vehicles exceed a posted weight limit within 30 days of the date of a posted weight reduction. The following standard weight limit signs, each showing a 30,000 pound weight limit, had been posted by the Department on SR 520, from I-95 to SR 528, on May 26, 1992: Facing Eastbound on SR 520 (in Brevard County): Just east of I-95: "Weight Limit Last Exit" Just west of I-95: "Weight Limit" (no distance to bridge stated) 2 miles east of the bridge and just east of SR 524: "Weight Limit 2 Miles" Just east of the bride: "Weight Limit" Facing Westbound on SR 520 (in Orange County): Just west of SR 528: "Weight Limit 9 Miles" 4.2 miles west of bridge: "Weight Limit Restriction Ahead" (no distance to bridge state) 4 miles west of bridge: "Weight Limit 4 Miles" Just west of SR 532: "Weight Limit Last Exit" 2 miles west of the bridge: "Weight Limit 2 Miles" Just west of the bridge on the St. Johns River: "Weight Limit" The above signs meet current MUTCD standards. MUTCD refers to the Federal Highway Administration Manual on Uniform Traffic Control Devices, 1988 Edition, which has been incorporated by reference into Florida Administrative Code Rule 14-15.010. SR 520 was under construction at the time the vehicle crossed the bridge, and the driver did not observe the signs posted by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that a penalty correctly assessed to M & M Truck Service, Inc., under the provisions of Section 316.545, Florida Statutes, and that no refund of the reduced penalty of $653.00 should be made. DONE and ENTERED this 8th day of June, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 8th day of June, 1993. APPENDIX Petitioner's proposed findings of fact: Accepted in substance by stipulation. Respondent's proposed findings of fact: Consisted of argument directed to the stipulated facts and need not be specifically ruled upon. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Gary E. Moses, President M & M Truck Service, Inc. 313 Shadow Oak Drive Casselberry, Florida 32707 Ben G. Watts, Secretary Attn: Michelle Arsenault #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues concern the question of whether the Petitioner is entitled to impose a $1,660.00 assessment against Respondent for operating a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On October 21, 1991, Respondent's commercial vehicle was inspected at the Petitioner's Yulee weight station located on Interstate 95 in Nassau County, Florida. It was discovered that the motor vehicle did not have a Florida registration. Furthermore, the South Carolina registration for the vehicle was not apportioned to allow operation in Florida. As a consequence a penalty was assessed for operating the commercial vehicle in Florida without benefit of an appropriate registration. The actual amount of penalty was $1,660.00 which is reflective of the gross weight of 68,200 pounds at a price of .05 per pound of the amount in excess of 35,000 pounds. Respondent paid the $1,660.00 fine plus the $30 single trip registration fee. This payment was rendered on the date that the commercial vehicle was stopped.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered finding that the $1,660.00 penalty was an appropriate amount to be assessed against the Respondent on October 21, 1991, as envisioned by Section 316.545(2)(b), Florida Statutes, and that the request for refund of that amount be rejected. DONE and ENTERED this 23rd day of June, 1992, in Tallahassee, Florida. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 GayCille Swisher Isley Iron & Metal Company 1691 Lost Mountain Road Powder Springs, GA 30073 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 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 23rd day of June, 1992.
The Issue Whether the penalties assessed against Respondent by Petitioner in the amount of $336.00, for allowing its vehicle to be operated with a load which exceeds the permissible gross weight, were proper.
Findings Of Fact Donna Edwards, W.M. Daniels and Robert J. Avery are employees of Petitioner, Florida Department of Transportation, motor carrier compliance section. While so employed on June 22, 1991, Ms. Edwards issued a load report and field receipt to Respondent's driver, Rick Benafield, who was operating a truck owned by Respondent. Ms. Edwards measured and weighed the truck. The weight was 80,480 pounds and the maximum permissible weight for the truck which was 51 plus feet long, is 80,000 pounds. Ms. Edwards assessed Respondent's driver (Benafield) a penalty of $24.00 for being 480 pounds over the maximum allowable weight. On March 31, 1991, Petitioner's employee, W. M. Daniels, measured and weighed a vehicle owned by Respondent. The weight of the vehicle was 80,740 pounds and the bridge weight was 70,740 pounds. The legal maximum allowable weight for the bridge section of the subject vehicle is 69,500 pounds. As a result of being 1,240 pounds overweight in the bridge section, employee Daniels assessed a penalty of $62.00 against Respondent's driver (Benafield). On June 2, 1991, while on official duty, employee Avery issued a load report and field receipt to Respondent's driver, Rick Benafield, and assessed a $250.00 civil penalty for operating a vehicle which was 5,000 pounds over the gross allowable weight of 80,000 pounds on the extension bridge section of the vehicle. The gross weight of the vehicle was 85,000 pounds and the maximum allowable weight was 80,000 pounds. Employees Edwards, Daniels and Avery used standard operating procedures in weighing Respondent's vehicles. Petitioner's scales are tested and certified for accuracy semi-annually in accordance with its rules and regulations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a Final Order denying Respondent's request for a refund of the $336.00 civil penalty assessed its driver, Rick Benafield. DONE and ENTERED this 14th day of January, 1992, in Tallahassee, Florida. JAMES E. BRADWELL 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 14th day of January, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr., Esq. Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, FL 32399-0458 James R. Benafield Gene Hyde Trucking Co. 3315 Swindell Road Lakeland, FL 33809 Ben G. Watts, Secretary ATTN: Eleanor F. Turner Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issue in this case is whether the $124.00 penalty assessed against Respondent by the Department of Transportation is legally and mathematically correct.
Findings Of Fact The maximum legal weight allowed for vehicles traveling on a Florida state highway is 80,000 pounds. On November 18, 1991, a commercial motor vehicle owned and operated by Respondent was driving on State Road 15, also known as U.S. Highway 1, in Nassau County, Florida. At that time and place, DOT Weight Inspector R. S. Young weighed Respondent's vehicle on the pit scale at the Hilliard Weigh Station at approximately 23:32 (11:32 PM), using a "split weigh" method because the vehicle exceeded the 56 feet which the DOT scale would accommodate. Inspector Young filled out the Load Report indicating three separate axle weights of the vehicle with a total weight of 82,480 pounds, which exceeded the maximum weight restriction by 2,480 pounds. The fine imposed was $124.00, calculated at five cents per pound by which the scale weight of the vehicle exceeded the maximum weight of 80,000. Respondent paid the fine. The scale at the Hilliard Weigh Station which was used by Inspector Young on November 18, 1991 had been inspected and certified pursuant to statute by the Florida Department of Agriculture on July 24, 1991, four months before the weighing of Respondent's vehicle. On March 4, 1992, approximately five months after Respondent's vehicle was weighed, the Hilliard Weigh Station scale was again inspected and certified by the Florida Department of Agriculture. Neither time was there a discrepancy in true weight which would have materially affected the weighing of Respondent's truck on November 18, 1991. Affording Respondent's position every benefit of the doubt, it is possible, but not proven, that the Hilliard Weigh Station scale could have weighed 80 pounds heavier than the truck's true weight on November 18, 1991. Respondent contended that he had "split weighed" his loaded vehicle earlier on November 18, 1991 on a commercial Howe scale and that the Howe scale weight was accurate in showing his vehicle weighed under the 80,000 pound statutory limit, as opposed to the weight at the Hilliard Weigh Station later the same day, which weight showed the loaded vehicle weighed over the 80,000 pound statutory limit. All witnesses are agreed that if done correctly, a "split weigh" is reasonably accurate for multiple tandem, multiple axle vehicles longer than 51 feet, and it is unrefuted that many of these types of weigh-ins are done regularly at the Hilliard Weigh Station and throughout the industry. The method is specifically permitted for use by law enforcement, in this instance, by DOT. However, the expert testimony of Mr. Robert Garris, Supervisor of Weights and Measures for the State of Florida Department of Agriculture and Consumer Services, is accepted that "split weighs" on a Howe scale are "assuredly inaccurate" because such scales are not manufactured to be used with "split weighs" and that, although DOT is authorized, for law enforcement purposes, to do "split weighs", DOT's scales also are not necessarily any more accurate for use with the "split weigh" method than the Howe commerical scale. Therefore, it is found that if it could be shown by competent evidence that the Howe scale "split weigh" and the Hilliard scale "split weigh" were each done correctly and showed different weights, one weight being "over" and one weight being "under" the statutory limit, DOT could not prevail herein by a preponderance of the evidence. Respondent presented a weight ticket purportedly showing that this loaded vehicle had a gross weight of 76,600 pounds on the Howe scale at 14:29 (2:29 PM) on November 18, 1991, also achieved by a "split weigh" method. Although self-serving, Respondent's direct testimony to this effect is unrefuted, as is his direct testimony that when he weighed his loaded truck on the Howe scale, the Howe scale bore a current Florida Department of Agriculture certification seal. However, the four weights printed automatically onto the Howe scale weight ticket do not add up to the pencilled "76,600" handwritten thereon. Upon Respondent's direct testimony and supporting exhibits, it was also shown that a commercial Certified Automated Truck Scale (CAT Scale) had recorded the gross weight of Respondent's front two axles as only 19,280 pounds on October 9, 1991. The CAT scale, which renders a "full platform" gross weight, provides a more accurate gross weight than the "split weigh" method, but this weigh-in occurred approximately a month before the weighing of Respondent's truck at the Hilliard Weigh Scale on November 18, 1991 and accounted for only two axles and no load. Respondent contended that if one added together the weight of his load as stated by the shipper on his November 18 bill of lading, the manufacturer's weight of 9500 pounds as stamped on the side of the trailer, a weight he personally estimated for nylon ropes to secure the load, possible fuel intake, and the CAT weight of his vehicle's front two axles, Respondent's vehicle weight on November 18 would still have been under 80,000 pounds when it reached the Hilliard scale, and Respondent would not have been subject to an overweight assessment and fine. However, this scenario is speculative. It is speculative because of insufficient predicate for the accuracy of some of the figures named, due to the failure of the numbers on the Howe scale ticket to add up as specified by Respondent, and due to the margin for error when only two axles were weighed a month earlier on the CAT scale.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a Final Order ratifying the assessment and penalty of $124.00. DONE and RECOMMENDED this 17th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17 day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-1872 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1-6, 8 (There is no "6", but the unnumbered paragraph between "5" and "7" is treated as "6") Accepted. 7 Accepted in part and rejected in part because of Respondent's direct testimony which established certain facts found. Respondent's PFOF 1, 13 Accepted that some of this is what the shipper told Respondent and placed on the bill of lading, but it remains hearsay and unpersuasive on the dispositive issue of true weight in light of other exhibits and testimony. Accepted except where contrary to the probative evidence and rejected as unproven and also rejected where unnecessary, subordinate, or cumulative. Specifically, the numbers show a print out of 4 axles, not 3, or four printed items for gross, tare and net pounds. It is not clear which. Also, the total of the four figures are in excess of legal weight limits. See Exhibit R-1. Rejected as not of record and rejected as legal or persuasive argument as opposed to a proposed finding of fact; rejected as not dispositive and as not persuasive. The first sentence is accepted. The remainder is rejected as mere legal or persuasive argument. 5-6, 8-10 Accepted except where unnecessary, subordinate, or cumulative. 7,14 Rejected because much of this is not of record. Otherwise it is unnecessary, subordinate, or cumulative. 20-21, 23 Accepted, except that Mr. Garris did not testify that the Howe scale was certified or accurate. This was Respondent's testimony. 11-12 Rejected as stated because not supported by the record as a whole. Covered accurately in the RO. 15-18 These calculations are rejected as speculative and not supported by any weight ticket. Legal and persuasive arguments are also rejected as not factual proposals. 19 Accepted, but unnecessary, subordinate and cumulative. 22, 24 Rejected as legal and persuasive argument only, not factual proposals. COPIES FURNISHED: Carolyn S. Holifield Chief, Administrative Law Section Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mrs. Thomas Bachota 201 North Shaffer Street Milford, Indiana 46542 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner, M.S. 58 Thornton J. Williams, General Consel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue The issue for consideration in this matter is whether the Respondent violated the weight limitations for truck traffic over a low limit bridge on SR 850 in Palm Beach County, Florida on November 12, 1991, and if so, what is the appropriate penalty.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was the state agency responsible for enforcing the state statutes involving commercial carrier weight compliance in this state which it does through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to cite drivers and owners of commercial vehicles which violate the load limits on the streets and highways of this state. On November 12, 1991, at approximately 2:30 PM, Officer Roy Neff stopped the Respondent's open board truck for crossing the low limit bridge located on State Road 850 in North Palm Beach, Florida, while apparently overloaded. The truck was carrying a load of drywall sheets and stucco. Officer Neff weighed the vehicle with the Department's portable scales he carried with him. These scales are calibrated for accuracy every 6 months. He utilized the standard Department weighing procedure which calls for a weight under each axle combined to give a total vehicle weight. This vehicle weighed 68,000 pounds loaded, according to this procedure used. Because this particular bridge was allowed no more than 26 tons, (52,000 pounds), of weight for a vehicle in this category, (non-trailer with 2 axles), Officer Neff cited the Respondent's driver for an overweight of 16,000 pounds. Since overweight is penalized at 5 per pound, the penalty assessed was $800.00. The approach to this bridge was clearly marked at several locations with signs indicating the maximum weight permitted for this bridge was 26 tons. These signs were located at sites which were far enough away from the bridge (1 mile and 1/2 mile) to give a driver ample opportunity to turn around or to take an alternate route to his destination on roads situated between the signs and the bridge. When the citation was issued here, the driver posted an acceptable bond and the vehicle was released. Respondent does not deny its vehicle as loaded exceeded the state's weight limitations for this bridge. However, it contends that the amount of overweight was less than that determined by officer Ness and it therefore overpaid the penalty by $252.30. Respondent bases this calculation on what it claims was the load on the truck at the time, multiplied by the weight per piece as provided by the manufacture of the product. In support of its claim, Respondent offered a handwritten, self-made list of weights purportedly taken from manufacturer furnished documents. These weights are then utilized in a computation of total load weight based on another handwritten list of materials, reportedly on the truck at the time, which was reconstructed from the delivery ticket for that trip approximately one week or so after the citation was issued. The weakness of this evidence is compounded by the fact that there is no weight in the "manufacturer's" list for the 30 sheets of 14 foot long drywall which Respondent claims weigh a total of 4,284 pounds. There is also no source for the 6,000 pounds of stucco. Presumably, the "75 stucco" relates to 75 bags at 80 pounds per bag. No doubt Respondent's protestations of overpayment are honestly made and made with good intentions. However, its evidence in support of its claim does not outweigh the evidence that the Department scales used to conduct the inspection here were calibrated for accuracy every 6 months. There is no evidence to indicate either that they were not accurate when used or that the weighing procedures followed were improper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore: RECOMMENDED that a Final Order be entered assessing a civil fine in the amount of $800.00 against the Respondent, Delta Building Supplies. RECOMMENDED this 20th day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street, MS - 58 ARNOLD H. POLLOCK, 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 20th day of July, 1992. Tallahassee, Florida 32399-0458 Tim Czencz Delta Building Supplies 12951 SW 124th Street Miami, Florida 33186 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue The issue is whether Petitioner is guilty of operating an overweight, unregistered commercial vehicle and, if so, the amount of the penalty.
Findings Of Fact On November 3, 1997, Petitioner was operating a U-Haul truck on County Road 951 in Collier County. Respondent's weight and safety officer pulled over the vehicle for a routine inspection. Petitioner was in the moving business and was transporting a third party's household goods from Chicago, Illinois, to Naples, Florida. Petitioner produced an Ohio- apportioned registration, which had expired on May 31, 1997. However, Petitioner had no log book concerning his driving activity. Respondent's weight and safety officer weighed the vehicle, which was a laden straight truck, and found that it weighed 13,400 pounds. Respondent's law enforcement officer thus issued Load Report Citation Number 090045M and collected $170 for the overweight load and Safety Report Number 085886 and collected $100 for the failure to maintain a log book.
Recommendation It is RECOMMENDED that Respondent enter a final order dismissing Petitioner's request for a refund of the penalties in the amount of $270 already collected from him. DONE AND ENTERED this 8th day of July, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 8th day of July, 1998. COPIES FURNISHED: Kelly A. Bennett Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Christopher W. Campbell 14751 South Homan Number 5 Midlothian, Illinois 60445 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Attn: Diedre Grubbs Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
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.
Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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" 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" 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.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was the victim of discrimination by the Respondent because of an alleged disability and whether the Respondent retaliated against the Petitioner for filing a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC).
Findings Of Fact The Petitioner Gregory L. Stubbs, was employed by the Respondent Department as a maintenance yard Welder for approximately five and one-half years. In 1993, he suffered a back injury on the job, resulting in chronic pain. On January 28, 1997, the Petitioner accepted a position with the Department's Office of Motor Carrier Compliance (MCC) as a Weight Inspector. The Weight Inspector position accepted by Mr. Stubbs was an open, advertised position at the time, for which the Department accepted applications and conducted interviews, including that of Mr. Stubbs. He applied for the position, was interviewed and selected for the position. When Mr. Stubbs was offered the Weight Inspector position, he was advised that appointment to the position would amount to a demotion from his current position with the Department, in the sense that he would have to accept a base rate of pay of 5 percent less than he had been earning. He voluntarily accepted that position and the reduction in pay. The pay for the position was set when the position was released for hire and was not changed because Mr. Stubbs elected to apply for the position and became the selected candidate hired for the position. Weight Inspectors work at fixed-scale weigh stations where trucks are weighed. Mr. Stubbs was assigned to the "Northbound scales" on Interstate 95 near Yulee, Florida in Nassau County. Weight Inspectors are responsible for enforcing the motor vehicle weight laws, writing citations for violations, as well as writing citations for fuel tax violations and enforcing the dimensional limits on motor vehicles. The job involves weighing and measuring vehicles, writing citations, answering the telephone, operating a computer and checking vehicle tags and registration numbers. The job does not involve any heavy lifting, loading or any physically demanding tasks. Weight Inspectors employed by MCC work alone at the scale houses, except when a new inspector is present for training. Mr. Stubbs was able to perform these duties and, when present for work, performed them well. Mr. Stubbs was supervised by Sgt. Robert Bryan. Sgt. Bryan participated in interviewing Mr. Stubbs and in selecting him for the position. During the interview process Sgt. Bryan informed Mr. Stubbs of the Weight Inspector's job duties. Mr. Stubbs never informed Sgt. Bryan that he would have any trouble performing the job duties. Mr. Stubbs also did not tell Sgt. Bryan, at that time, that he had trouble with his back or that he would have trouble reporting for work on time. Sgt. Bryan later learned that Mr. Stubbs had trouble with his back, but did not consider the problem to restrict Mr. Stubbs' ability to perform the Weight Inspector job. Weight Inspectors are required to report for work on time. The failure to report for work timely, results in closure of the scale facility. When a Weight Inspector has to be late or is unable to report for work before the beginning of a shift, he is required to advise the supervisor before the scheduled time for the shift. This requirement is contained in the Department's published Conduct Standards. Copies of the Department's published Conduct Standards are provided to all Weight Inspectors that work for MCC, including the Petitioner. Department employees are advised that unexcused tardiness or absences will be grounds for disciplinary action and the Petitioner was so informed. On October 19, 1997, Sgt. Bryan counseled Mr. Stubbs about failing to notify him of an absence from work. Sgt. Bryan stressed the need for Mr. Stubbs to contact him as soon as he became aware that he would not be able to timely report for work. On October 12, 1998, Sgt. Bryan counseled Mr. Stubbs for failing to report to work on time. Sgt. Bryan again stressed the need for Mr. Stubbs to timely report to work. On December 31, 1998, Mr. Stubbs acknowledged receipt of a Memorandum from Lt. Vicki D. Thomas concerning tardiness and the use of leave. Lt. Thomas is the Jacksonville Field Office supervisor for MCC and is Sgt. Bryan's immediate supervisor. Lt. Thomas' Memorandum requires Weight Inspectors to contact both the main MCC office and the inspector who they are scheduled to relieve whenever they will be tardy or absent. On January 13, 1999, Sgt. Bryan again counseled Mr. Stubbs about failing to report to work as scheduled In 1998, Mr. Stubbs filed a grievance through his union, the American Federation of State, County and Municipal Employees (AFSCME). The subject of the grievance was the reduction in pay Mr. Stubbs' sustained by accepting employment with MCC. He sought re-instatement of the pay he had received as a Welder. Lt. Thomas received the AFSCME grievance on August 17, 1998, and responded to it by noting that the grievance was untimely and that Mr. Stubbs had voluntarily accepted the Weight Inspector position and attendant reduction in pay. Although the grievance was unsuccessful Mr. Stubbs continued his employment with MCC. On or about February 9, 1999, the Petitioner filed a Charge of Discrimination with the EEOC alleging that the Department had discriminated against him on the basis of race and disability by reducing his pay when he accepted the Weight Inspector position. On May 13, 1999, the EEOC advised the Petitioner that it could not investigate his charge because it was not filed within the time required by law. A copy of the EEOC Dismissal and Notice of Rights was provided to the Department. A copy of the EEOC Notice was also sent to Mr. Stubbs at the Department's address. This copy was mistakenly opened by the Department and then forwarded to Mr. Stubbs. Sgt. Bryan became aware of the complaint when the letter was opened in the Department offices, but the complaint was not a factor in his supervision of Mr. Stubbs. On April 2, 1999 through June 25, 1999, the Petitioner was absent from work. He exhausted all of his sick leave and was authorized additional, unpaid leave under the Family Medical Leave Act. On June 25, 1999, Mr. Stubbs returned to his Weight Inspector assignment. He was scheduled to work on July 2, 7, 8, 9, 13 and 16, 1999. He did not report for work on those days. On July 8, 1999, he failed to advise Sgt. Bryan that he would not be reporting for work. Sgt. Bryan checked with other supervisors to see if Mr. Stubbs had advised anyone else that he would be absent, and learned that Mr. Stubbs had not contacted them. Lt. Thomas issued a written reprimand to the Petitioner for these absences. The reprimand was issued because he was absent from work without authorized leave and failed to follow the Department's rules concerning advance approval for leave. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the reprimand. On July 20, 1999, Sgt. Bryan spoke with Mr. Stubbs about a cash penalty that Mr. Stubbs had collected on a "load report." Weight Inspectors who collect cash penalties are required to convert the cash funds to a money order or cashier's check within 48-hours after the date the report is issued. Weight Inspectors are allowed to use work time to convert cash penalties to money orders or cashier's checks. Sgt. Bryan asked the Petitioner about the cash because the load report involved was apparently issued six days earlier. The Petitioner told Sgt. Bryan that he had not converted the cash to a money order, that he had the cash with him and that he believed the inquiry was ridiculous. Sgt. Bryan then had to go to Mr. Stubbs's doctor's office to retrieve the cash penalty. Mr. Stubbs received a suspension for his handling of the cash penalty and related behavior. Lt. Thomas investigated the allegations contained in the suspension letter and believed them to be correct. She prepared the letter for signature. Neither Mr. Stubbs' prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. During the period from July 21, 1999 to August 6, 1999, the Petitioner was repeatedly absent and late to work. At 12:25 p.m., on August 1, 1999, the Petitioner advised Lt. Thomas that he had not worked as scheduled on July 31, 1999, and had not reported for work on the morning of August 1, 1999. On August 26, 1999, the Petitioner received a suspension for his unauthorized and excessive absences. Lt. Thomas investigated the allegations contained in the suspension letter, believed them to be correct and prepared the letter for signature. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. The Petitioner was advised that any further violations of the Department's Conduct Standards would result in more severe discipline, up to and including dismissal. The Petitioner was scheduled to work from October 11 through October 15, 1999, but did not report for work on those days. He did not contact Sgt. Bryan or Lt. Thomas to advise them that he would not be at work. Lt. Thomas and Sgt. Bryan checked with other MCC supervisors and staff but were not advised that Mr. Stubbs had contacted anyone. Sgt. Bryan and Lt. Thomas did not hear from Mr. Stubbs from October 11 through October 15, 1999, and had not authorized his absences. The Department dismissed Mr. Stubbs from employment for those unauthorized absences. The Petitioner was apparently ill during that period but did not provide the Department with a doctor's note until approximately six weeks after the absences. The doctor's note does not indicate that the Petitioner was unable to call his supervisors to report his anticipated absence. The Petitioner did not establish that he was unable to report to his supervisors as required. The Department's discipline of the Petitioner and the ultimate decision to dismiss him from the Department were not motivated by Mr. Stubbs' prior complaint to the EEOC. Although some of his absences from work may have resulted from his back injury, the evidence does not establish that all of his absences were related to his injury. He was absent for material amounts of time in excess of his available leave. In 1999, he exhausted his accrued leave and used twelve weeks of unpaid leave under the Family Medical Leave Act. After returning from family medical leave, he continued to be absent for a significant period of time. There was no showing that additional leave would enable Mr. Stubbs to return to work on a regular basis. Additionally, he failed to notify his superiors in advance of his absences as required and instructed.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the Petition in its entirety. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 3rd day of October, 2002. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Gregory L. Stubbs 3563 North Hampton Cove Court Jacksonville, Florida 32225 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
