The Issue The issues in this case are (1) whether the Petitioner, the Department of Transportation, should assess against the Respondent, Cypress Creek Landscape Supply, Inc., a penalty for violating the Taylor Road bridge weight restriction, and (2), if so, the amount of the penalty.
Findings Of Fact On February 9, 1990, a commercial motor vehicle owned and operated by the Respondent, Cypress Creek Landscape Supply, Inc., was driven over the bridge over Alligator Creek on Taylor Road (County Road 765A), a federal aid primary highway near Punta Gorda, Charlotte County, Florida. The vehicle, loaded with mulch, was weighed at 71,760 pounds. The Taylor Road bridge is part of a route that can be taken by I-75 traffic wishing to bypass one of the Department's I-75 weight stations. The bridge is posted as being restricted to a maximum weight of 22 tons. The weight restriction is posted at the bridge, and warnings that the weight restricted bridge is ahead appear at conspicuous places at terminals of all intermediate crossroads and road junctions with the section of Taylor Road containing the weight restricted bridge. Notices are posted twice near the exit from I the Respondent's vehicle used to bypass the Department weight station. From these locations, the Respondent's vehicle could have been turned around to avoid the weight restricted bridge. A Department Compliance Officer cited the Respondent for violating the maximum weight restriction for the Taylor Road bridge and assessed a $1,388 penalty, calculated at five cents per pound by which the scaled weight of the vehicle (71,760) exceeded the maximum weight (44,000 pounds). The Department's Form 509-13, Revised 05/89, titled the "Load Report and Field Receipt," specifies that, in subtracting the legal weight from the the scaled weight to determine the amount of overweight, a ten percent tolerance should be added to the legal weight. This is how the Department interprets and applies the requirement of Section 316.545(2)(a), Fla. Stat. (1989), that, for enforcement purposes, all scaled weights of the gross or axle weight of vehicles and combinations of vehicles shall be deemed to be not closer than 10 percent to the true gross weight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order finding the Respondent, Cypress Creek Landscape Supply, Inc., guilty of violating the Taylor Road bridge weight restriction and assessing a $1,168 penalty (reduced from $1,388). RECOMMENDED this 29th day of May, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 29th day of May, 1991. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Steven P. Lewis, President Cypress Creek Landscape Supply, Inc. 12734 North Florida Avenue Tampa, Florida 33612 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Elyse S. Kennedy Executive Secretary Commercial Motor Vehicle Review Board Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The only factual issue in this case is whether the Superior Paving triple axle dump truck being driven by Norman Jones on February 13, 1990, on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, was being operated with its air axle up, resulting in its being over the maximum weight for its remaining tandem rear axle under Section 316.535, Florida Statutes (1989). However, this straightforward factual case also raises several legal and procedural questions, including: (1) whether the Division of Administrative Hearings has jurisdiction; (2) which agency is authorized to take final agency action in the case; (3) who are the actual parties in interest; (4) whether the parties have standing; and (5) which party bears the burden of proof.
Findings Of Fact On February 13, 1990, while traveling south on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, Patty Fagan, a DOT Motor Carrier Compliance Officer, observed a Superior Paving, Inc., dump truck traveling north on U.S. 41 with a full load of rock. She decided to check the load and, as she began to slow, she saw a second Superior Paving dump truck, also heading north with a full load of rock. She testified that the second truck was riding with its air axle up, leaving only two tandem rear axles, along with the steering axle, to bear the weight of the load. Fagan continued a short distance to the south on U.S. 41 until she was able to turn around and pursue the trucks to the north. She passed the second truck between one and two miles from where she turned around and testified that the second truck still was traveling with its air axle up. Fagan pulled up behind the first truck where it had stopped in the left turn lane at the entrance of the Gardinier plant. She got out to check the first truck. Meanwhile, the second truck, driven by Norman B. Jones, pulled up behind Fagan's vehicle. According to Fagan, Jones' truck still had the air axle up. According to Jones, the air axle was down at all times that he was within sight of Fagan until he pulled into the left turn lane behind Fagan's car and, while she was talking to the driver of the first truck, raised the air axle in preparation for the left turn. It would be difficult for anyone, much less an experienced compliance officer like Fagan, to mistakenly think she saw Jones' truck riding with the air axle up. It is obvious and easy to see whether the air axle is up or down. Likewise, it was easy for Jones to determine whether the air axle was up or down. There is a switch and an air pressure gauge immediately to the right of the driver seat which registers 40 pounds of pressure when the air axle is down and zero when it is up. The factual issue resolves to a question of the relative credibility of Fagan and Jones. Fagan wrote in her report of the incident that Jones first admitted that he had been driving with his air axle up because it was malfunctioning. The report states that Jones told her the problem was noticed when he picked up his first load in Brooksville and that he planned to have the problem fixed after his third load. She wrote that she told him he should have had it fixed before he left the yard with the first load. In fact, Jones only carried two loads that day, as usual, and never planned to carry three loads. He picked up both loads in Center Hill, Florida, about 60 miles northeast of Brooksville, and drove to Gardinier via I-75, also to the east of Brooksville, never going anywhere near Brooksville. Jones denied having made the statements the report attributes to him and stated that he had no reason to mention Brooksville or an alleged third load in the course of his conversation with Fagan. Fagan also wrote in her report that Jones changed his story later in the conversation and claimed that the air axle worked but was slow. Fagan said her response was that the air axle should have been down by the time she passed him for the second time, after she had turned around to head north on U.S. 41. Jones also denied that he ever said the air axle was slow. He testified that the air pressure system was worked on just two weeks before the incident and that it was in perfect operating condition. Neither party adduced any documentary evidence or testimony of third persons to establish whether air pressure system repairs were done on the truck or, if so, when they were done or what the problem was. Jones testified that his last load out Brooksville was "about six months ago." It is not clear whether he meant six months before the incident or six months before the hearing, which would have put it about the time of the incident, and also about the time work was done on the air pressure system. The evidence suggests the possibility that an air pressure problem arose while Jones was carrying a load out of Brooksville and that he had mentioned this to Fagan. In response to questioning by counsel for the DOT, Jones first stated that it is common to have problems with the air axle and that he has had trouble with the air axle on the same truck he was driving on February 13, 1990. In his next breath, he stated that he has had no trouble with the air axle on the truck but said he did have the governor on the air pressure system replaced "about a year and a half ago." (Again, his testimony was not clear whether he meant a year and a half before the incident or before the hearing.) He also again admitted that about two weeks before the incident, the air pressure lines and valves were replaced, and the air axle line was reattached to the new valve. According to Fagan, after checking the first truck, she went back to Jones' truck, asked Jones for his load ticket and, while he was looking for it in the cab, did a routine check by feeling the tires on the air axle and on the front tandem axle on the driver side. She testified that the tire on the air axle was cooler. Jones denies that Fagan ever touched or even got close to the tandem axle. Jones testified that he standing on the step to the cab when Fagan walked up and asked to see the his load ticket and that he just reached in, grabbed it off the dashboard and handed it to her. He testified that he then stepped to the ground and stood between Fagan and the rear axles and that she never walked past him. Later in testimony, Fagan testified that she might have asked Jones for the vehicle registration so that she could check the registered gross weight of the vehicle, and that Jones was looking for it in the cab while she was touching the vehicle tires. But Jones countered that Fagan did not ask for the vehicle registration until later, when they were at the weigh station to which Fagan had Jones drive. Jones testified that the air axle was down all the way from Center Hill except for just two times on each load when he raised it for purposes of negotiating tight turns, as permitted by the DOT's nonrule policy designed to reduce road and truck wear and tear: once when he turned onto U.S. 41; and a second time after he entered the left turn lane at the entrance of the Gardinier plant and stopped behind Fagan's car, while Fagan was talking to the driver of the first truck. However, Jones' description of his route from Center Hill to Gardinier included several other turns that would seem to have been just as tight as the two he says were the only times he raised his air axle. As Jones pointed out, if the rest of his testimony is true, even if the air axle was up the entire time from when he turned onto U.S 41 until he was stopped at the entrance to the Gardinier plant, the air axle tires still would have been hot to the touch. Conversely, if Fagan's testimony that the air axle tire was cool to the touch is true, then the air axle probably was up for most, if not all, of the trip from Center Hill. No statement was taken, or testimony elicited, from the driver of the other company truck to shed light on this factual dispute. Despite the difficulties presented by the evidence in this case, it is found that the DOT has proven by a preponderance of the evidence that Jones was operating the company truck he was driving on February 13, 1990, with the air axle up at least for a mile or two along U.S. 41. After their conversation in the left turn lane at the Gardinier plant entrance, Fagan required Jones to drive to a weigh station. (It angered Jones that this weigh station was five miles out of Jones' way. Jones did not understand why the truck could not have been weighed at the Gardinier plant.) The scale showed that 52,540 pounds of weight was being supported by the rear tandem axles of the truck. After weighing the truck, Fagan issued a citation and $387 fine to Superior Paving, Inc. The company paid the fine and deducted it from Jones' salary. The company never challenged the fine, and there is no evidence in the record that the company authorized Jones to challenge it on the company's behalf. Jones reqested that the Commercial Motor Vehicle Review Board drop or the fine reduce, which it declined to do.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commercial Motor Vehicle Review Board enter a final order upholding the $387 fine it assessed against Superior Paving, Inc., in this case. RECOMMENDED this 24th day of September, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 24th day of September, 1990.
Findings Of Fact Respondent operated a truck on May 14, 1991, which had a legal weight of 80,000 pounds. The truck was weighed on May 14, 1991, at the White Springs Scales on I-75. At the time it was weighed, the truck weight registered 87,600 pounds. The actual weight of the truck exceeded the legal weight by 7,600 pounds. The operator of the truck requested a second weighing. A second weighing was performed with the same result as the first weighing. Petitioner imposed a penalty of $380 which was paid by Respondent. The amount of the penalty was accurately calculated in accordance with applicable law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order upholding the fine imposed against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1992. DANIEL MANRY 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 January, 1992.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was responsible for the licensing and regulation of the operation of commercial motor vehicles on all streets and roads in this state. The Respondent, Florida Mining & Materials operates and, at the time of the alleged violation, operated commercial vehicles over the roads of this state. By letter dated June 11, 1990, George L. Crawford, P.E., Acting Director of Lee County's Department of Transportation and Engineering, notified the Petitioner's Office of Motor Carrier Compliance that it appeared trucks were exceeding the posted weight limits of the Ortiz Road Culvert, located 0.3 miles south of SR - 80 in Lee County. As a result of this letter, the Department began to monitor the cited culvert and on July 19, 1990, Officer Ellis K. Burroughs observed Respondent's cement dump truck cross the culvert in front of and to the side of which, in plain view, was a sign indicating that trucks weighing over 5,000 pounds should detour and go down Luckett Road without crossing the culvert. According to Mr. Burroughs, Respondent's vehicle did not detour as directed and went north on Ortiz Avenue, over the culvert. Mr. Burroughs gave chase and finally stopped the driver of Respondent's truck some 6 or 7 blocks north of the culvert. When asked why he had failed to use the detour and had crossed the culvert, the driver of the truck said his office had told him to do so and he had done so before. This comment is introduced not to show aggravation but to dispel any inference of lack of knowledge of the limitation. The sign in question had been erected on December 4, 1980. Some months after this incident, the sign was changed and the current permissible weight is 20 tons. No reason was given for the change nor was any information presented as to whether any modifications were done to the culvert before or since the change. The culvert in issue was described as of light construction - a culvert pass-through underneath the roadway. Mr. Burroughs weighed the offending truck at the scene and determined it had a gross weight of 45,700 pounds. The legal weight on that bridge at the time was only 5,000 pounds and, therefore, the Respondent's truck was overweight by 40,700 pounds. At a penalty of 5 cents per pound of violation, the penalty was assessed at $2,035.00 which was paid by the Respondent on August 3, 1990. Respondent's representative, Mr. Watson, was not present at the time and had no personal knowledge of the incident. He claims, however, that his company was operating under the impression that even at the time, the weight limit over that culvert was 20 tons. He does not concede that at the time of the incident the load limit was only 5,000 pounds. The weight of the evidence, however, is that it was. He claims this road is the only way they have of getting to certain jobs and if cut off from crossing, they are cut off from their business. Mr. Watson admittedly is not familiar with the area and overlooks the fact that there are alternative routes to the other side of that culvert, albeit somewhat longer. He discounts the somewhat longer, (2 1/2 miles additional), route claiming, "That's a lot of milage when what you're hauling is redi-mix concrete." Mr. Watson introduced several pictures of other large trucks going over that same culvert in an effort to show that other vehicles may also have been in violation. Some of those pictures were taken subsequent to the limit change and reflect that the limit is 20 tons. Further, Mr. Burroughs and Mr. Thompson indicate that subsequent to the letter from the County requesting increased surveillance, at least 45 to 50 citations were issued at that culvert. Some carriers were cited several times. Respondent was cited only once. After paying the penalty assessed, Respondent appealed it to the Department's Commercial Vehicle Review Board which reviewed it at its November 8, 1990 meeting and determined that a refund was not appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's request for a refund of the $2,035.00 fine paid for the violation of the weight limits on the culvert in question here be denied. RECOMMENDED this 8th day of July, 1991, in Tallahassee, Florida. 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 8th day of July, 1991. APPENDIX TO RECOMMENDED ORDER 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 to this case. COPIES FURNISHED: H. Robert Bishop, Jr., Esquire Department of Transportation 695 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Watson Operations Manager Florida Mining & Materials Post Office Box 2367 Tallahassee, Florida 33902 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 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue in this case is whether the Hayes & Hayes Trucking triple axle dump truck being driven by Norman Williams on June 20, 1990, on U.S. 92 between 56th Street and Orient Road in Tampa, Florida, was being operated with its air axle up, resulting in its being over the maximum weight for its tandem rear axles, as well as for its steering axle, under Section 316.535, Florida Statutes (1989).
Findings Of Fact On June 20, 1990, Norman Williams was operating a dump truck owned by Hayes & Hayes Trucking on 56th Street in Tampa, Hillsborough County, Florida. The truck was equipped with a steering axle, tandem rear axles and a middle "mini-axle" that can be lowered to carry heavy loads. When required to carry heavy loads, the "mini-axle" can be raised only during turning but must be lowered upon completion of the turn. When Williams got to U.S. 92, he raised the "mini-axle" and made a right turn onto U.S. 92, headed east. He did not lower the "mini-axle" after the turn. While headed west on U.S. 92, about a hundred yards east of 56th Street, Rebecca Stalnaker, a DOT Motor Carrier Compliance Officer, observed the dump truck Williams was driving traveling east on U.S. 92 with its air axle up. She made a U-turn to check the load. After making her U-turn, Stalnaker followed the truck, which was traveling in the left lane of the eastbound traffic on U.S. 92, for approximately a mile. Three or four times, Stalnaker changed to the right lane to verify that the truck's air axle still was up. After following for about a mile, Stalnaker put on her blue light to get the driver of the truck to pull over and stop. For the first time, Williams saw Stalnaker in his side view mirror and, as he began to pull into the right lane, put his truck's air axle down. Williams pulled the truck off the right side of the road. When Stalnaker confronted Williams and accused him of driving with the air axle up, Williams replied that he thought it was permissible to drive with the air axle up in town when driving in traffic in streets having traffic signalization. Stalnaker required Williams to put the air axle back up and drive his truck to a weigh station. The scale showed that the front, steering axle of the truck was supporting 19,980 pounds and the rear, tandem axles of the truck were supporting 47,400 pounds. After weighing the truck, Stalnaker issued a citation and $181.50 fine to Hayes & Hayes Trucking. The company paid the fine and required Williams to reimburse the company. The company never challenged the fine, and there is no evidence in the record that the company authorized Williams to challenge it on the company's behalf. Williams requested that the Commercial Motor Vehicle Review Board drop the fine. The Review Board and the Department acquiesced in Williams' standing, but the Review Board declined to drop the fine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order upholding the $181.50 fine it assessed against Hayes & Hayes Trucking in this case. RECOMMENDED this 2nd day of October, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 2nd day of October, 1991.
Findings Of Fact DOT Motor Carrier Compliance Officer Raul Vargas, Jr., stopped a commercial vehicle traveling on Interstate Highway 95 (S.R. 9), for a safety inspection on February 19, 1991. The vehicle was operated by William Henry Golden. Officer Vargas had Mr. Golden drive the truck off the interstate highway so that it could be weighed safely. There was no certified weight station within five miles of where he stopped Mr. Golden's vehicle, so Officer Vargas used portable scales that had last been calibrated January 17, 1991, 32 days preceding this event. The frequency for calibration of these scales is at six-month intervals, so there was great probability that these scales were accurate on February 19, 1991. Officer Vargas weighed the steering, drive, and rear axles of the vehicle, which resulted in a total weight of 85,800 pounds. Either the vehicle registration or the ICC authorization card ("bingo card") was made out to "Brisk Transportation Inc." The I.R.P. registration permitted only a gross vehicle weight of 80,000 pounds. Officer Vargas issued Load Report and Field Receipt No. 44747J to Brisk Transportation Inc., assessing a penalty of $290.00 for 5,800 pounds over the registered gross vehicle weight. Mr. Golden paid the $290 penalty personally and the vehicle was released to him as operator. Upon the testimony of Officer Vargas and Lt. Chuck Snellson, Officer Vargas' supervisor who reviewed the incident, and in consideration of these officers' education, training, and experience, it is found that Officer Vargas followed the proper and standard departmental procedure in weighing the vehicle and levying the $290.00 penalty. Nancy Golden, William Golden's wife, testified that her husband had a contract with Brisk Transportation to transport the product in the vehicle in question on February 19, 1991. She testified further that Mr. Golden was paid based on the product he was carrying at any given time and that there was no relationship between the weight of the product and the pay for transporting it. Nancy Golden was not present at any time when the product was being loaded, unloaded, transported, or weighed. Consequently, her assertion that Mr. Golden's vehicle actually weighed less than the weight registered by Petitioner's portable scale is not credible or persuasive. The several exhibits admitted in evidence in support of Mrs. Golden's assertion are not, in fact, probative of it. 1/ Mrs. Golden's unrefuted testimony that she and Mr. Golden owned the vehicle in question on February 19, 1991 and have since sold it is accepted as credible. There is no dispute between the parties that Mr. Golden, individually, paid the penalty and no suggestion by either party that the penalty was paid by Brisk Transportation Inc., a corporation. Even though Officer Vargas cited Brisk Transportation Inc. on the Load Report and Field Receipt, Mr. Golden (truck owner and operator) actually paid the fine to DOT. This entire administrative proceeding originated upon Mr. Golden's petition, and he is the appropriate party in interest here to whom a refund would be owed if the penalty were unlawful.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the penalty of $290.00 was correctly assessed Brisk Transportation Inc./William H. Golden under provisions of Section 316.545 F.S. DONE and ENTERED this 28th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 28th day of October, 1990.
Findings Of Fact On March 26, 1991, petitioner's safety officer, David Pearce, stopped a commercial vehicle operated by respondent on State Road 7 in Palm Beach County, Florida, for inspection. Such stop was predicated upon the officer's well- founded belief that the weight of the vehicle exceeded legal limits. The subject vehicle had four axles, with the rear axles in tandem. The officer weighed the vehicle by axle, and the rear tandem axles weighed 49,400 pounds. The legal weight for the tandem axles was 44,000 pounds, as provided by Sections 316.535 and 316.545, Florida Statutes. 1/ Accordingly, the axle weight of the subject vehicle was 5,400 pounds over the legal limit. A penalty in the amount of $10.00 for the first 1,000 pounds and 5 cents per pound for each additional pound overweight was assessed against respondent. The total assessed penalty was $230.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered sustaining the penalty of $230.00 assessed against respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of February 1992. WILLIAM J. KENDRICK 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 25th day of February 1992.
Conclusions This matter came before the Department for entry of a Final Order pursuant to submission of an Order Closing File by Lawrence P. Stevenson, an Administrative Law Judge of the Division of Administrative Hearings,. The record reflects that the parties have settled their dispute and entered into a Settlement Stipulation. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: 1. On or about May 6, 2011, Respondent paid a civil fine of $500.00 by certified cashier’s check. 2. The Settlement Stipulation of Petitioner and Respondent is adopted and incorporated into this Final Order of the Department in accordance with its terms. Respondent shall comply with all terms and conditions herein. Filed May 24, 2011 2:46 PM Division of Administrative Hearings DONE AND ORDERED this at day of May, 2011, in Tallahassee, Leon County, Florida. Copies furnished: Carl Broglin Post Office Box 3683 Ocala, Florida 34478 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Dwight Davis, Bureau Chief Division of Motor Vehicles Wayne Jordan, Program Manager License Installer Program Ubld . Lambert, Interim Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this aeeaay of May, 2011. Nalini Vinayak, Dealer weconse Administrator
Findings Of Fact Respondent owns and operates a tractor-trailer combination that it uses for hauling a large crane. As configured at the time in question, the gross vehicle weight was 127,780 pounds, which is distributed over one steering axle, a four-axle combination at the rear of the trailer, and a three- axle combination between the other axles. The four-axle combination bore 60,280 pounds. The outerbridge of the vehicle, which is the distance from the front axle to the rear axle, was over 70 feet. Respondent, which is a small company located in Tennessee, transports its crane throughout the southeastern portion of the United States. Respondent employs a company known as Comchek to secure the necessary permits for the trips. In this case, Comchek obtained for Respondent a Trip Permit dated April 12, 1989. The permit states that the trip is from the Georgia line to the Alabama line on Interstates 95, 295, and 10. The permit notes that the vehicle is 75 feet long, has eight axles, and weighs 135,000 pounds. One of the special requirements on the permit states: "If overweight, a max (3)000 axles allowed per grouping with a minimum of 10 feet to next adjacent axle, center to center." The "000" represents a graphic depiction of three axles. Respondent's vehicle did not meet the axle-grouping requirement. Less than 10 feet separated the four axles in the rear from each other. Thus, the vehicle, if overweight, violated this condition of the permit. The permit contains only two references to weight. One notes the gross weight. The other is in a special condition and requires that overweight vehicles obtain an 80,000 pound license tag. Although the Trip Permit does not clearly disclose on its face that any weight over 80,000 pounds is overweight, Respondent's representatives were on notice that their long and heavy vehicle exceeded the normal weight restrictions so as to be classified as "overweight." The permit's reference to 135,000 pounds cannot be construed to set the standard over which a vehicle would be overweight. Otherwise, the permittee could use the permit to transport a 300,000 pound load on an eight-axle vehicle as long as the vehicle had no axle groupings of more than three. The failure to obtain the proper permit was the fault of Respondent or its agent, Comchek. Either Respondent did not communicate the axle groupings to Comchek or Comchek did not communicate them to Petitioner. In either event, through no fault of Petitioner, the Trip Permit obtained by Respondent was violated the moment the vehicle crossed the Florida line. Inspecting the vehicle at the Sneads inspection station at 6:53 a.m. on April 14, 1989, Petitioner's representatives discovered the violation. The Load Report and Field Receipt of the same date, which cites a violation of Section 316.545, Florida Statutes, states that the gross weight of 127,780 pounds exceeds the legal weight of 80,000 pounds by 47,780 pounds. The resulting penalty is $2389. The receipt acknowledges payment under protest. At 9:53 a.m. on the same date, Petitioner issued to Respondent a second Trip Permit that suspended the requirement of 10 feet between axle groupings. Petitioner released the vehicle at 11:05 a.m., and the vehicle completed the remainder of its trip in Florida without incident. The expedience with which Petitioner issued the second Trip Permit was largely because Respondent had already crossed the bridges that were most vulnerable to excessive loads. However, due to the length of the outerbridge and the number and distribution of axles, Petitioner's expert determined that Petitioner would have, after computer analysis, issued a permit for the vehicle as originally configured, if the proper information had been supplied.
Recommendation Based on the foregoing, it is recommended that the Commercial Motor Vehicle Review Board enter a Final Order finding Respondent guilty of violating the above-cited statutes and imposing a fine of $2389 or such lesser amount as the Board may deem appropriate. DONE and ORDERED this 13th day of December, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 13th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4523 Treatment Accorded Proposed Findings of Petitioner 1-6: adopted or adopted in substance. 7 and 12: rejected as recitation of testimony, argument, and not finding of fact. 8-11: rejected as subordinate. 13-16: adopted or adopted in substance. 17: rejected as against the greater weight of the testimony of DOT's expert witness, Larry H. Davis. There is no evidence that the outerbridge was only 51 feet. There is conflicting evidence as to the length of the outerbridge, which is at least 64 feet. The diagram that Respondent gave to Petitioner in applying for the permit states that the vehicle length is 75 feet. Subtracting the distance of five feet and three inches between the centerline of the rearmost axle and the rear extreme of the vehicle, the outerbridge is almost 70 feet. However, adding up the confusing distances given on the diagram, which among other shortcomings is clearly not drawn to scale, the total outerbridge is 54 feet. The distance between the centerline of the three-axle grouping and the four-axle grouping was 30 feet. The distance between the first and fourth axle in the rear is about 13 feet. The distance between the steering axle and the rearmost of the three-axle group is about 21 feet. COPIES FURNISHED: David M. Maloney Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32399-1050 Carl R. Nidiffer, President Precipitator Services Group, Inc. P.O. Box 339 Elizabethton, TN 37644 Ben Watt Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Elyse S. Trawick, Executive Secretary Commercial Motor Vehicle Review Board Department of Transportation 605 Suwanee Street Tallahassee, Florida 32399-0450 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION COMMERCIAL MOTOR VEHICLE REVIEW BOARD, DEPARTMENT OF TRANSPORTATION, Petitioner, vs. DOAH CASE NO. 89-4523 PRECIPITATOR SERVICES GROUP, INC., Respondent. /
