The Issue Should Respondent be required to pay Petitioner Twenty-Five Hundred dollars ($2,500.00), as a civil penalty for causing or permitting an out-of-service driver to operate a commercial motor vehicle (vehicle)?
Findings Of Fact Bryant Gay is a Motor Vehicle Compliance Officer who works for Petitioner. He was on duty on March 6, 1998. On that date, consistent with his employment, he stopped a commercial motor vehicle owned by Respondent and operated by Danny Holton. The stop was made in Gadsden County, Florida, on U.S. 90. The time of the stop was approximately 5:00 p.m. The basis for this stop was the suspicion that there was a violation of the weight axle law, premised upon Officer Gay's observation of the truck tires and springs. Once the stop was made the truck was weighed and was found to be of legal weight. But a check of Mr. Holton's driver's license revealed that the license did not carry the proper endorsements to operate a tank vehicle (such as Respondent's) of a capacity of more than one thousand gallons. As a consequence, Mr. Holton was cited for operating the vehicle without the proper driver's license and was fined one- hundred dollars ($100.00), pursuant to citation. Officer Gay also advised Mr. Holton that Mr. Holton was being placed out-of-service. After placing Mr. Holton out-of-service, Dan Strauss, the son of Fred Strauss, who is the owner and president of Respondent, was contacted. At that time Dan Strauss was serving as the acting representative of the Respondent in Fred Strauss' absence. Dan Strauss came to the scene of the stop and paid the $100.00 civil penalty for Mr. Holton's violation of the driver's license requirement that had been cited. Dan Strauss also brought a second driver to drive the subject vehicle back to Respondent's business premises. The second driver was allowed to return the subject vehicle based upon Officer Gay's belief that the second driver had the necessary license endorsements to operate the vehicle. Nothing in the conversation held between Officer Gay and Dan Strauss, at the point in time when the $100.00 civil penalty was paid, and the truck placed in the custody of the second driver, could reasonably be interpreted by Dan Strauss to allow Mr. Holton to continue to operate the subject vehicle before obtaining appropriate license endorsements. Nor did the conversation create a reason to believe that such an operation by Mr. Holton, if discovered by Petitioner's officer, would again be met with a further citation not to exceed $100.00. Nonetheless, Dan Strauss made the business judgment, that a customer, who was in immediate need of assistance to deal with a failed septic system, should not be ignored, even in the circumstance where Mr. Holton would be called upon to drive the subject vehicle to provide the service. Thus, Dan Strauss, having been told by Officer Gay that Mr. Holton was out-of-service to operate the subject vehicle, dispatched Mr. Holton to provide the service to the customer. At around 6:30 p.m., on March 6, 1998, Officer Gay saw Mr. Holton pulling the subject vehicle onto U.S. 27, in Gadsden County, Florida, and stopped the vehicle again. On this occasion, Officer Gay imposed a further citation in the amount of a civil penalty of twenty-five hundred dollars ($2,500.00), against Respondent, for permitting Mr. Holton to operate the subject vehicle when Mr. Holton had been declared out-of-service. When contacted about the additional citation, Dan Strauss told Officer Gay that he understood that Mr. Holton had been placed out-of-service as a driver of the subject vehicle; however, Dan Strauss told Officer Gay, that he, Dan Strauss, had assumed that if Mr. Holton was caught operating the vehicle it would only lead to another $100.00 civil penalty. No facts presented at hearing mitigate the twenty-five hundred dollar ($2,500.00) civil penalty for allowing an out-of- service driver to operate Respondent's vehicle.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes a twenty-five hundred dollar ($2,500.00) civil penalty against Respondent. DONE AND ENTERED this 21st day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1998. COPIES FURNISHED: Kelly A. Bennett, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Fred Strauss Talquin Septic Tank Post Office Box 559 Midway, Florida 32343 Thomas F. Barry, Secretary Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
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 only issue remaining in this case is the extent to which the Petitioner, the Department of Transportation (DOT), should penalize the Respondent, Keystone Excavators, Inc. (Keystone), for operating a commercial motor vehicle with an expired vehicle registration and for exceeding the maximum legal weight of 35,000 pounds allowed under Section 316.545, Fla. Stat. (1987).
Findings Of Fact On July 8, 1987, one of Keystone's commercial motor vehicles was operating on Interstate I-4 near Plant City, Hillsborough County, Florida, with a registration that expired on May 31, 1987. According to the DOT scales, the weight of the vehicle, loaded, was 82,520 pounds. The DOT's Form 509-13, Revised 1/86, 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 DOT interprets and applies the requirement of Section 316.545(2)(a), Fla. Stat. (1987), 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. When Keystone last registered the vehicle in question, it obtained a six-month registration instead of an annual registration. As a result, the registration expired May 31, 1987. For some reason, the sticker stating the month of expiration of the registration was not put on the vehicle's registration tag. Through inadvertent oversight, Keystone failed to renew the registration on the vehicle. When the DOT discovered the violation, it fined Keystone $2,376, calculated as 5 cents for each pound the vehicle weighed over 35,000 pounds. Keystone paid the fine under protest, taking the position that the fine was excessive under the circumstances. On the same day, after the DOT citation, Keystone paid a late fee and renewed the vehicle's registration for the period from May 31, 1987, forward. Keystone's evidence proved that Keystone did not intentionally violate the vehicle registration laws in this instance. Keystone does not intentionally violate the applicable laws and attempt to avoid or escape detection of violations. Nor does Keystone conduct business in a reckless or careless manner with respect to compliance with the applicable laws and treat penalties for detected violations as a cost of doing business. Notswithstanding this violation, Keystone generally has a good record for operating safe and properly licensed and permitted vehicles. The violation in this case resulted from an isolated case of inadvertent oversight. Keystone requested that the Commercial Motor Vehicle Review Board (the Review Board) drop or reduce the fine. The Review Board considered Keystone's request on August 13, 1987, and denied it by letter dated August 18, 1987. Keystone then requested a rehearing. The Review Board met on December 8, 1987, and denied rehearing by letter dated December 14, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order reducing the fine against Keystone to $750. RECOMMENDED this 2nd 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 2nd day of May, 1991.
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. /
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
The Issue Whether Respondent properly fined Petitioner the sum of $115.00 for the reasons set forth in Commercial Motor Vehicle Citation No. 1026031, issued July 28, 2003, as modified by the Commercial Motor Vehicle Review Board on November 6, 2003.
Findings Of Fact At all times pertinent to the issues herein, the Department was the state agency responsible for enforcing the statutes involving commercial carrier vehicle weights on covered vehicles operated on the streets and highways of this state. It does so through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to conduct random safety and compliance inspections of commercial vehicles being operated in this state. Tree Trimming is the owner of a "straight truck," i.e., a two-axle truck on which the cargo unit and the motor power unit are located on the same frame so as to form a single, rigid unit. See § 316.003(70), Fla. Stat. (2003). The truck carries Vehicle Identification No. ("VIN") 2FZAAJCP11AG86965 and Florida license no. D28CYX. The declared gross vehicle weight of the truck is 25,900 pounds, making that the maximum weight the truck can carry under its license. Tree Trimming also owns a wood chipper that rides on a single-axle trailer with VIN 60142267. The manufacturer's weight rating for the trailer is 7,040 pounds. On July 28, 2003, Officer John Brenner stopped Tree Trimming's truck and trailer, which was driven by Mr. McCarren, an employee of Tree Trimming. Officer Brenner requested Mr. McCarren to produce his driver's license and the vehicle registration for the truck. He performed an inspection of the truck and trailer, noting several minor safety violations, which are not relevant here. Officer Brenner then weighed the truck and trailer at the scene utilizing a set of certified, recently calibrated, Department-owned scales, using the standard weight procedures. He weighed them without detaching the trailer from the truck. Officer Brenner first placed the scales under each tire of the truck. The front axle of the truck weighed 8,000 pounds. The rear axle of the truck weighed 11,300 pounds. Officer Brenner next placed the scales under the tires of the trailer. The single axle of the trailer weighed 7,300 pounds. The total weight of the truck and trailer was 26,300 pounds. When the 25,900 pound maximum legal weight was subtracted from the actual weight, Tree Trimming's truck was seen to be 400 pounds overweight. That excess, taxed at five cents per pound, resulted in a civil penalty of $20.00. Officer Brenner noted that Mr. McCarren carried a Class D Florida driver's license. A Class D driver's license authorizes its holder to drive a truck with a weight of 8,000 pounds or more, but less than 26,001 pounds. To drive a motor vehicle combination weighing more than 26,001 pounds, a driver must possess a valid Class A, B, or C driver's license. See § 322.54(2)(c) and (d), Fla. Stat. (2003). Officer Brenner cited Tree Trimming for allowing its driver to operate a vehicle outside of his class and assessed Tree Trimming a civil penalty of $100.00. Tree Trimming contended that Officer Brenner should have disconnected the truck and trailer before weighing them. Tree Trimming argued that weighing the truck and trailer without disconnecting them resulted in the connecting tongue of the trailer being weighed twice. This contention is rejected. The tongue of the trailer resting on the back of the truck would naturally increase the measured weight of the truck, but would also decrease the measured weight of the trailer by a corresponding amount. There is no basis to find that the weight of the tongue would have registered twice on the scales. Tree Trimming also contended that Officer Brenner was either incompetent or overly eager to find violations. As to the incompetence allegation, no evidence was offered that Officer Brenner was unqualified to weigh Tree Trimming's vehicles. Officer Brenner is a certified law enforcement officer and has received 104 hours of training in weight, registration, permits, and over-dimensional aspects of commercial vehicles. He has completed 328 hours of training specifically related to his duties with the Office of Motor Carrier Compliance, including the roadside weighing of vehicles. As to the allegation of over-eagerness, Tree Trimming pointed to statistics showing that in 2003, Officer Brenner weighed 170 vehicles and issued citations to 158 of them, a citation rate of 93 percent. The Department's statewide statistics for 2003 indicated that 30,711 vehicles were weighed and 14,844 citations were issued, a citation rate of 48 percent. The disparity between Officer Brenner's citation rate and the statewide citation rate was said by Tree Trimming to establish that Officer Brenner is determined to issue citations to every vehicle he stops. The evidence established that none of Officer Brenner's 158-weight citations in 2003 were challenged, except for the one at issue in this proceeding. In any event, the cited statistics do not demonstrate that Officer Brenner did anything wrong in issuing this or any other citation. After issuing the citation, Officer Brenner allowed Mr. McCarren to disconnect the trailer from the truck and to drive the truck away. Officer Brenner explained that once the trailer was detached, the truck was under the weight limit and Mr. McCarren could legally drive it. Tree Trimming immediately drove the truck to a local dumping/recycling facility and had it weighed, once with its full load and again after the load was dumped. The scales at the dump indicated the loaded truck weighed 18,020 pounds, whereas Officer Brenner's weighing showed the truck weighed 19,200 pounds. Tree Trimming contends that this disparity proves that Officer Brenner's weighing was incorrect and that the truck was under the maximum weight. Tree Trimming did not offer evidence as to the accuracy or calibration of the scales at the dump or any verification that the load was not lightened on the way to the dump. Officer Brenner testified that the load of wood chips was falling out of the back of the truck at the time he weighed it. When the truck was weighed at the dump, it was not connected to the trailer. As indicated above, the truck was supporting some of the trailer's weight when Officer Brenner weighed it. Taking all of the evidence into account, Tree Trimming's weighing of the truck at the dumping facility is insufficient to establish that Officer Brenner's weighing of the truck and trailer at the roadside stop was inaccurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a final order be entered imposing an administrative fine of $15.00 on Tree Trimming & Removal, Inc. DONE AND ENTERED this 13th day of May, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2004. COPIES FURNISHED: J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Glen Wayne Shelton, President Laura R. Chamberlain, Vice President Tree Trimming & Removal, Inc. 3808 Wilkinson Road Sarasota, Florida 34233 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The central issue in this case is the Department's cancellation of a duplicate vehicle title which showed a first lien status asserted by Petitioner for a 1985 Porsche automobile, title no. 41645698.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On or about June 28, 1989, the Petitioner sold a 1985 Porsche automobile, VIN WP0AA0945FN452920, Florida title no. 41645698, to an individual identified in this record as William H. Moulton. Also on that date, Wayne Scott Moore, as president of Performance, filed an application for certificate of title for the subject vehicle with the Brevard County tax collector. That application provided that Kennedy Space Center Federal Credit Union (KSCFCU) was the first (and only described) lienholder on the vehicle to be titled in Mr. Moulton's name. On December 20, 1989, a second notice of a lien on the subject vehicle was filed by the Petitioner. That notice was also filed with the tax collector's office in Brevard County, Florida. This notice described Petitioner's lien to be a "2nd Lien." Based upon a coding error entered at the tax collector's office, the lien filed by Performance was mistakenly coded and identified as a first lien. Prior to that date a satisfaction of the KSCFCU lien had not been filed. As a result of the coding error, when a duplicate title was processed it described Performance as a first lienholder instead of a second lienholder. On or about August 24, 1990, the Department discovered the coding error and cancelled the duplicate title which had omitted the KSCFCU first lien. A corrected title was issued which was sent to KSCFCU. When Mr. Moulton failed to remit monies owed to Petitioner, it sought to foreclose its lien interest on the subject vehicle and, on August 1, 1990, obtained a final judgment of foreclosure against William Hodgman Moulton. KSCFCU was not named a party to that suit and the court presumed (final judgment paragraph 13) that Petitioner was the first lienholder on the subject vehicle. Petitioner was aware of the first lien status claimed by KSCFCU for the subject car on or about June 28, 1989. When Performance filed the documentation to perfect its security interest, the documentation stated it was to be a second lien. Petitioner presented no evidence that the first lien of KSCFCU has been satisfied either in fact or as a matter of law. Petitioner's first lien status is claimed only by virtue of the coding error in the tax collector's office. The Department first discovered the error regarding the duplicate title (which had been issued in January, 1990) just prior to its notice to Petitioner dated August 24, 1990. That letter advised Performance of the error and directed it to send the incorrect title to the Department.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Highway Safety and Motor Vehicles enter a final order confirming the cancellation of the incorrect duplicate title and issuance of the corrected certificate of title for the subject motor vehicle. DONE and ENTERED this 24th day of May, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraph 1 is accepted. Paragraph 2 is rejected as contrary to the weight of the evidence. Why Petitioner refers to a "tax lien" is unknown. Petitioner filed a notice of lien for a motor vehicle, that notice described the lien as a "2nd lien" for a 1985 Porsche automobile which is the subject vehicle in these proceedings. Paragraph 3 is rejected as contrary to the weight of the evidence. The tax collector processed the notice of lien as the Department's agent. In the coding process an error was committed which was not readily picked up which resulted with the Department issuing a duplicate title wherein it erroneously described Petitioner's lien as the first lien. The lien filed by KSCFCU has not been "replaced" or satisfied based upon this record. Paragraph 4 is rejected as argument or contrary to the weight of the credible evidence. With regard to paragraph 5 it is accepted that the letter of cancellation for the incorrect duplicate title was issued approximately 8 months after the incorrect duplicate title had been issued. Otherwise, the paragraph is rejected as argument, a conclusion of law not supported by the record, or, if fact, unsupported by the record in this case. Paragraph 6 is rejected as self-serving and uncorrobated hearsay. Mr. Moore's contention that the first lien to KSCFCU had been paid was not supported by any credible evidence. Mr. Moore's testimony to the contrary was not deemed credible. If the first lien shown on the Department's records has been paid, Performance should have presented evidence to that fact. Certainly bank records for the loan transaction could be subpoenaed. In point of fact, Mr. Moore knew of the first lien because he had filed the original paperwork to give notice of that interest. Paragraph 7 is rejected as not supported by the weight of credible evidence. Paragraph 8 is rejected as irrelevant or immaterial to the resolution of this case. The Department, upon discovery of the error, took reasonable steps and timely corrected the problem. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 5 are accepted. With the deletion of the phrase "replacing the first lien of Kennedy Space Center Federal Credit Union" paragraph 6 is accepted. That phrase is rejected as contrary to law or unsupported by the record in this case. Paragraphs 7 through 10 are accepted. COPIES FURNISHED: Michael J. Alderman Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A432 Tallahassee, Florida 32399-0504 Steven J. Jacovitz 43 S. Atlantic Avenue Cocoa Beach, Florida 32931 Kennedy Space Center FCU 415 Fortenberry Road Merritt Island, Florida 32952 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
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
