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 for determination is whether the Commercial Motor Vehicle Review Board's decision in this matter is proper; a determination that necessarily requires a finding of whether Respondent is liable for payment of a civil penalty for commission of the infraction of falsifying the log book of a commercial motor vehicle.
Findings Of Fact On February 4, 1992, Jimmy R. Holton was driving on State Road (SR) 76 in a commercial vehicle bearing Vehicle Identification Number (VIN) 1F4Y05YB8LH385086. The vehicle was owned by Respondent, Herbert W. Allen d/b/a Allen Transit. At 10:42 a.m., on that date the vehicle was stopped for inspection by Michael Roberts, a Motor Carrier Compliance Officer employed by Petitioner. Roberts examined the driver's log book and discovered the driver had pre-logged a future activity. The log reflected that the entry was made at the not yet existing time of 11:30 a.m. The officer completed his inspection and issued a Safety Report and Field Receipt which reflected his action of assessing a civil penalty of $100 for the false entry in the log book and putting the driver out of service for eight hours. The penalty was paid at that time. The vehicle was transporting automobile parts, non- hazardous material, from Jacksonville, Florida. The vehicle had left Delray Beach, Florida headed for Stuart, Florida when stopped for inspection. The vehicle's travel had occurred inside the State of Florida. The driver was maintaining a log book in compliance with legal requirements of Section 316.302(2)(d), Florida Statutes (1991), because the intrastate distance for the contemplated trip exceeded a radius of 200 air miles from Jacksonville, Florida.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered rescinding the previous imposition of the $100 civil penalty administratively imposed by Petitioner. DONE AND ENTERED this 4th day of November, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 4th day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Respondent's Proposed Findings None submitted. Petitioner's Proposed Findings 1.-2. Accepted. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Herbert W. Allen P.O. Box 742 Hiawassee, GA 30546 Vernon L. Whittier, Jr., Esq. Assistant General Counsel 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Thorton Williams, Esq. General Counsel Department of Transportation Rm 562, Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether or not the Petitioner, Radiant Oil Company of Jacksonville, is responsible to pay $4,466.64, plus the penalty and interest currently due from a proposed assessment by the Respondent, State of Florida, Department of Revenue, Motor Fuel Tax Bureau, under the alleged authority of Chapter 206, Florida Statutes.
Findings Of Fact The Radiant Oil Company of Jacksonville is a dealer in special fuels within the meaning of Chapter 206, Florida Statutes. The Respondent, State of Florida, Department of Revenue, Motor Fuel Tax Bureau is responsible for the enforcement of the tax provisions found in Chapter 206, Florida Statutes. On October 6, 1977, the Respondent issued a notice of proposed assessment against the Petitioner claiming the amount of tax due to be $4,837.92. This notice of proposed assessment may be found as part of the Composite Exhibit 1 of the Respondent, admitted into evidence. There remains in dispute $4,466.64 together with a possible penalty and interest that would be assessed. This amount of disputed tax, penalty and interest pertains to transactions between the Petitioner and the Boam Company, one of its customers. Specifically, the Respondent is asserting a tax on the amount of 55,833 gallons of diesel fuel which was sold to the Boam Company by the Petitioner. Diesel fuel is a "special fuel" within the meaning of Section 206.86(1), Florida Statutes. The Boam Company is not a dealer within the meaning of Chapter 206, Florida Statutes, it has executed an exemption certificate for the benefit of the Petitioner on a form provided by the Respondent. The certificate is Petitioner's Exhibit 1, admitted into evidence. The facts in the transaction which lead the Respondent to believe that the tax is owed are constituted through the method of Boam Company sending their tanker truck to the depot/business compound of the Radiant Oil Company for purposes of picking up the diesel fuel in question. After the individual deliveries of diesel fuel were made at the compound, that fuel was then taken by the Boam Company's tanker truck to be delivered for utilization by certain off road equipment owned by Boam Company. None of the fuel in dispute was used by any form of over the road vehicle which requires a motor vehicle license. (The 55,833 gallons in dispute does not involve the first 110 gallons of diesel fuel delivered on each pickup made by the Boam Company tanker at the Petitioner's compound.) The Petitioner takes the position that Section 206.87 (4)(a) exempts the questioned transactions from the taxes set forth in Chapter 206, Florida Statutes. That provision of Chapter 206 reads as follows: 206.87 Levy of tax.- The following sales shall not be subject to the tax herein imposed: Sales by a dealer when the special fuel is delivered for home, industrial, commercial, agricultural, or marine purposes, for consumption other than use, or for resale pursuant to paragraph (c) hereof. In particular the Petitioner contends that the sale by Radiant Oil Company to the Boam Company constitutes deliveries for commercial purposes other than use or other than for resale pursuant to paragraph (c) of the same section of Chapter 206, Florida Statutes. That paragraph (c) pertains to sales of five gallons or less by a person not a dealer, when that person does not have facilities for placing this special fuel in the fuel supply system of a motor vehicle, and would not fit the facts of this case. To understand the continuation of the argument by the Petitioner, it is necessary to look at the meaning of the word "use." In Section 206.86(5), Florida Statutes, "use" is defined in this fashion: 206.86 Definitions.- As used in this part: "Use" means the placing of special fuel into any receptacle on a motor vehicle from which fuel is supplied for the propulsion thereof. It is also necessary to understand what "motor vehicle" means within the definition of Chapter 206, Florida Statutes. "Motor vehicle," is defined in Section 206.86(2), Florida Statutes, as being: 208.86 Definitions.- As used in this part: (2) "Motor vehicle" means any form of vehicle machine, or mechanical contrivance which is propelled by any form of engine or motor which utilizes special fuel and is required, or which would be required, to be licensed under the motor vehicle license law if owned by a resident. It is the Petitioner's position that the vehicles which ultimately used the diesel fuel in question, did not require any form of license under the motor vehicle license law in the State of Florida, if they had been owned by a resident, and consequently did not constitute "motor vehicles" within the meaning of the definition found in the aforementioned section. Accordingly, from the point of view of the Petitioner this utilization of the motor fuel was for purposes of consumption other than "use." The Respondent replied to the Petitioner by stating that the exempt category which would apply in this instance is that found in Section 206.87(4)(b), Florida Statutes. That provision reads as follows: 206.87 Levy of Tax. - (4) The following sales shall not be subject to the tax herein imposed: (b) Sales at the dealer's place of business if not more than 110 gallons by a dealer into a receptacle not connected to the fuel supply system of a motor vehicle for consumption other than use. In the mind of the Respondent, this provision of the law creates an exemption for the sale of the first 110 gallons by a dealer, delivered into a receptacle not connected to the fuel supply system of a motor vehicle for consumption other than "use;" and acts to the exclusion of any possible exemption under 206.87(4)(a), Florida Statutes, which has been claimed by the Petitioner. Moreover, the Respondent relied strongly on a portion of the language of Section 206.87, Florida Statutes, which states ". . . unless expressly provided to the contrary in this part, every sale shall be deemed to be for use in this state . . . " Consequently, according to the Respondent, because Section 206.87 (4)(b), Florida Statutes, addresses the kind of transaction that the petitioner is involved in, this exemption creates the only possible exclusion from tax consequences that is available to the Petitioner. The Respondent expresses a retreating argument to the effect that the use of the word "delivered" found in Section 206.87 (4)(a), Florida Statutes, would mean direct delivery to the site of the place of consumption other than "use." After examining the position of the two parties, it is the undersigned's conclusion that Section 206.87(4)(a), Florida Statutes, creates an exemption from the possible tax consequences noted in Chapter 206, Florida Statutes. This conclusion is reached because the use of the word "delivered" in Section 206.87(4)(a) is followed by the word, "for" which creates the impression that delivery could be made either at the business location of the vendor, or at the location of the equipment that would be consuming the fuel for purposes other than "use." Had the legislature intended to limit the exemption found in the quoted provision to only those transactions involving deliveries to the home, industrial location, commercial location, agricultural location, or marine location, it would seem that they would have expressed it in the terms of the necessity to deliver "to the location" as opposed to stating it in terms of delivering "for purposes." In addition, the Section 206.87 (4)(b) Florida Statutes, does not exclude the right of the Petitioner to claim an exemption under Section 206.87(4)(a), Florida Statutes, nor is it inconsistent with that prior provision. Section 206.87(4)(b) , Florida Statutes, when read in pari materia with Section 206.87(4)(a) Florida Statutes, stands on its own and involves a different category of exemption. This category of exemption would include utilization of the special fuel for home, industrial, commercial, agricultural, or marine purposes, as well as any other utilization of the special fuel other than "use." Had it been intended for this provision, Section 206.87(4)(b), Florida Statutes, to exclude the right to exemption found in Section 206.87(4)(a), Florida Statutes, there would have been a connecting phrase between the two subsections (a) and (b) such as the word "or," such as the phrase "unless it exceeds the 110 gallon exemption found in the following subsection," or some similar comment. Since that type of language does not appear, it is unreasonable to assume that the legislature intended to have the prospective exempt organization or person required to accede to the exemption which affords the least advantage. For the reasons stated above the assessment in the amount of $4,466.64 plus the possible penalty and interest asserted under Chapter 206, Florida Statutes, should be rejected.
Recommendation It is recommended that the portion of the proposed assessment to the extent of $4,466.64 together with the penalty and interest be denied, and the Petitioner not be required to make such payment. DONE and ENTERED this 19th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1978. COPIES FURNISHED: Jack G. Hand, Jr., Esquire 1320 Atlantic Bank Building Jacksonville, Florida 32202 Maxie Broome, Jr., Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 John D. Moriarty, Esquire Department of Revenue Room 104, Carlton Building Tallahassee, Florida 32304 =================================================================
The Issue The issues in this case concern the question of whether Respondent is subject to the payment of a $2,078 fine for violation of Section 316.545, Florida Statutes. That statutory provision relates to operation of a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On April 9, 1990, a commercial vehicle operated by Respondent, as carrier, was stopped and inspected by Petitioner's inspector Deborah Charlene Andrews. This inspection took place in Jackson County, Florida. The commercial vehicle operated by Bobby Charles Alphin was weighed. It was determined that the gross vehicle weight was 76,560 pounds. Before entering Florida the commercial vehicle in question had been issued a fuel use trip permit effective April 8, 1990 through April 18, 1990. By contrast the commercial vehicle did not have either an apportioned, 10-day or single-trip vehicle registration which would allow it to operate in Florida on April 9, 1990. A copy of the fuel use emergency trip permit referred to before is found as Petitioner's Exhibit No. 1, admitted into evidence. A copy of the apportioned vehicle registration and identification cab card for the vehicle may be found as Petitioner's Exhibit No. 2, admitted into evidence. It does not reflect registration in Florida in the apportionment. Florida records do not reveal that a 10-day temporary International Registration Plan (I.R.P.) trip registration had been issued or a single trip permit issued registering the commercial vehicle in question. In the absence of such a registration allowing the trip in Florida, the inspector issued a trip permit registration upon the payment of a $30.00 fee as referred to in Petitioner's Exhibit No. 4, admitted into evidence. This exhibit is a copy of the I.R.P. trip permit. The trip permit that was issued allowed operation in Florida for 10 days. A copy of the load report and field receipt executed by the inspector may be found as Petitioner's Exhibit No. 3, admitted into evidence, which reflects the gross vehicle weight and the fact that this exceeded the legal weight of 35,000 pounds and the assessment a $.05 per pound fine for the weight above the legal weight. That fine is $2,078 for being overweight in the amount of 41,560 pounds. Again that overweight amount is derived in subtracting the allowed weight of 35,000 pounds from the gross vehicle weight of 76,560 pounds.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which fines the Respondent in the amount of $2,078 for violation of Section 316.545, Florida Statutes. DONE and ENTERED this 12th day of March, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1991. APPENDIX The facts as proposed by the Petitioner are subordinate to fact found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Philip R. Polachek, General Manager Little Donkey Enterprises, Inc. Post Office Box 822 Estacada, OR 97023 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be granted an Independent Motor Vehicle Dealer License, pursuant to Section 320.27, Florida Statutes (2008).
Findings Of Fact The Department is an agency of the State, charged with regulating the business of buying, selling or dealing in motor vehicles under § 320.27, Florida Statutes (2007). The Respondent applied for a license as an Independent Motor Vehicle Dealer. The application was signed by Harold Gillis. Mr. Gillis is the Respondent's president and sole corporate officer. The Resident Agent is Andrew Kiswani. Mr. Kiswani is also known as Alex Kiswani and Andy Kiswani. On the insurance certificate filed with the license application, Mr. Kiswani is shown as one of the named insureds. Named insureds on this type of insurance certificate are typically the dealer principals, the people actually operating the dealership. Mr. Kiswani is a convicted felon. He was convicted twice for theft of state funds. He has thirteen convictions of failure to file state tax returns and seven convictions of issuance of worthless checks to the Department of Revenue. Mr. Kiswani previously was licensed as a Motor Vehicle Dealer, as President of Ocala Auto and Truck Sales, Inc. That license expired on April 30, 2008. On May 19, 2008, Mr. Gillis and Mr. Kiswani displayed vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed location. Both of them were warned by Department employees to cease the unlicensed activity. On June 2, 2008, Mr. Gillis and Mr. Kiswani again displayed motor vehicles for sale at Ocala Auto and Truck Sales, Inc.'s former licensed premises. They were again warned by Department employees to cease the unlicensed activity. On June 11, 2008, Ocala Auto and Truck Sales, Inc. sold a car to James Reed. That seller failed to apply for a Certificate of Title on behalf of Mr. Reed and failed to pay off a lien on the vehicle, within 10 days of acquisition of the vehicle. Ocala Auto and Truck Sales, Inc., sold a vehicle to Wesley Leon Linsey. On February 7, 2007, the seller failed to apply for a Certificate of Title and registration within 30 days of delivery of the vehicle. On December 28, 2007, Ocala Auto and Truck Sales, Inc. entered into a contract with Darrell Lenamond for the consignment sale of a motor vehicle owned by Mr.Lenamond. Ocala Auto and Truck Sales, Inc. sold the vehicle and never paid Mr. Lenamond the money due him from the sale. Mr. Kiswani operated Mr. Gillis's previous dealership. He would be actively involved in operating the dealership for which the license is sought, by the Respondent Corporation, as its Resident Agent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED: That the Florida Department of Highway Safety and Motor Vehicles enter a Final Order denying the Respondent's license application. DONE AND ENTERED this 31st day of July, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Harold Gillis Certified Motors, Inc. 2895 South Pine Avenue Ocala, Florida 34471
Findings Of Fact The Parties H. B. Walker, Inc. is in the business of demolition, excavation and land clearing. The company transports heavy equipment to and from job sites and transports debris from job sites and is a commercial motor carrier. The company maintains a terminal for its motor vehicles at 1913 Bruton Boulevard, Orlando, Florida. All commercial motor carriers operating over the public highways in Florida are subject to certain federal regulations governing driver and vehicle safety and record-keeping. Those federal regulations are adopted by reference in the Florida Statutes, which statutes are amended from time to time to address a later version of the federal regulations. The DOT has the authority and responsibility to enforce those safety and record-keeping requirements, which it does, in part, through terminal audits, sometimes called "compliance reviews". The Process On April 18, 1995, after conferring with his supervisor, Officer Terron Lindsey, a seasoned agency motor carrier compliance officer, visited H. B. Walker's terminal and conducted a review of Walker's records. As a result of the review, Officer Lindsey found multiple violations of the record-keeping requirements of 49 CFR, parts 391 and 396. He advised Walker's personnel that he would return in 60 - 90 days and no penalty would be imposed if the violations were corrected. On a follow-up audit on July 12 and 13, 1995, Officer Lindsey found that some, but not all corrections were made. On August 1, 1995, the agency issued to H. B. Walker a Safety Report and Field Receipt stating the violations and citations to the federal rules and assessing penalties in the total amount of $4,000. Officer Lindsey delivered the Safety Report and Field Receipt to Walker's terminal and was told that the penalty would not be paid. Walker did not pay the $4,000, but protested the agency's findings to the Commercial Motor Carrier Board (Board). By 1995 the DOT had some brief experience with conducting terminal audits and assessing penalties for record- keeping violations, but this was the first time that a motor carrier had refused to pay the penalty prior to presenting its protest to the Board. Captain E. A. Brown, Officer Lindsey's supervisor, called the Tallahassee headquarters of DOT's motor carrier compliance office and the DOT's legal office to find out how to proceed. As motor carriers are aware, DOT exercises authority in road-side safety inspections to require immediate payment of any penalty or to impound the vehicle when a compliance officer issues a citation. Based on DOT's existing rules, Chapter 18 of the Motor Carrier Compliance Manual and experience with road-side safety enforcement, Colonel McPherson advised Captain Brown that the agency had authority to impound an H. B. Walker vehicle. After receiving directions from his headquarters, Captain Brown wrote letters to H. B. Walker and orally informed Walker's employee, John Valois, that if the penalty were not paid, a vehicle would be held, consistent with past enforcement actions on non-payment of penalties. On August 28, 1995, at the direction of Captain Brown, Officer Rick Hunter detained one of Walker's vehicles and impounded it at a DOT maintenance yard. In the meantime, after the Board received H. B. Walker's request for a hearing on the violations, the Board's Executive Secretary, Elyse Kennedy, telephoned Walker's counsel and told him that the Board could not hear his case until the penalties were paid, or a bond was posted. Later, after confirming with DOT legal staff, Ms. Kennedy sent a letter advising Walker's counsel that the Board could schedule and hear the case, as the impoundment of a vehicle was equivalent to payment of the penalties or the bond. H. B. Walker's case was scheduled with consultation with Walker's attorney. On the appointed date, when no representative from H. B. Walker appeared, the Board considered written material submitted by Walker's attorney and testimony from Officer Lindsey. The Board notified H. B. Walker of its denial of relief in a letter dated September 15, 199[5]. The letter states in pertinent part: Dear Sir: Pursuant to Section 316.545, Florida Statutes, the Commercial Motor Vehicle Review Board at its meeting of July 13, 199[5], carefully reviewed all of the information placed before it and determined that a refund was not appropriate in this case for the following reason. After hearing testimony of Officer Lindsey and Captain E. A. Brown, the Board felt that H. B. Walker, Inc. was not in compliance with CFR 391.51; CFR 391.43; CFR 391.103 and CFR 396.3. Pursuant to Rule 14A-1.012, Florida Administrative Code, you are entitled to request a rehearing in this matter by filing such a request with the Executive Secretary within ten (10) days of the receipt of this letter. Pursuant to Chapter 120, Florida Statutes, you have the right to either a formal or an informal hearing. A formal hearing will be granted where disputed issues of material fact exist; in other words, where you disagree with the specific facts contained in this letter upon which the Commercial Motor Vehicle Review Board bases its intent to deny your request for refund. All requests for either type of hearing must be in writing. * * * You are hereby notified that the conclusion contained in this letter shall become final with 21 days of receipt of this letter, unless, you file a written request for an informal or formal Administrative hearing pursuant to Section 120.57, Florida Statutes, with the Clerk of Agency Proceedings within 21 days. * * * Walker's timely request for a formal hearing tolled the Board's conclusion. The 1995 Rules In 1995, at the time of the H. B. Walker terminal audit and ensuing Board meeting, rules 14A-1.004 and 14A-1.007, Florida Administrative Code, provided, in pertinent part: 14A-1.004 Meetings . . . Only penalties which have been paid or for which a Section 316.545 bond has been posted, will be considered by the Review Board. 14A-1.007 Timely Written Request for Meeting Any person who is aggrieved by the imposition of a civil penalty imposed upon the provisions of section 316.545 or 316.3025, Florida Statutes, after payment of the penalty, or posting a section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office in writing within 60 days of the date of the penalty notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested . . . . At the relevant period, rules 14-87.011(1) and 14-87.002 provided, in pertinent part: 14-87.011 Definitions * * * "Citation" means: A Load Report and Field Receipt issued to the owner or driver of a commercial motor vehicle for violation of weight and vehicle registration laws: or A Safety Report and Field Receipt issued to the owner or driver of a commercial motor vehicle for violation of safety laws and regulations and permit violations; or The penalty portion of an I. R. P. Trip Permit & Temporary Fuel Use Permit issued to the owner or driver of a commercial motor vehicle in violation of the fuel use tax requirements contained in Chapter 207, Florida Statutes. 14-87.002 Penalties and Fees Due Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. . . The 1996 Amendments On June 7, 1996, DOT published notices of rule-making, proposing to amend various provisions of rule chapters 14-87, 14-108 and 14A-1. On July 16, 1996, the agency filed the amendments to Chapter 14A-1 for adoption, and those amendments became effective August 5, 1996. The amendments to Chapters 14-87 and 14-108, Florida Administrative Code, became effective in September 1996. The cumulative effect of these amendments is to distinguish between the penalty process for road violations and the process for violations found during a terminal audit/compliance review. The amendments provide that a commercial motor carrier who has been assessed penalties for violations found during a terminal audit may obtain a Review Board hearing prior to payment or posting a bond. The amendments also distinguish between a "notice of non- compliance" issued after a terminal audit to advise the carrier of violations and the penalties that will be assessed if the violations are not corrected, and a "notice of violation" which identifies the violations and assesses penalties. DOT's amendments to chapter 14-87, Florida Administrative Code, are, in relevant part, as follows: (Underlined material has been added, material struck through has been deleted.) 14-87.0011 Definitions * * * "Penalty" means a monetary amount prescribed by statute or Department rule as a civil penalty to be assessed administratively for a violation of a commercial motor vehicle law pursuant to the issuance of a citation or a notice of violation. * * * "Notice of Violation" means a notice of violation as defined by Rule 14-108.002(5). * * * 14-87.002 Penalties and Fees Due; Detaining and Impounding Motor Vehicles When Citation or Permit Issued Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. Penalties due under chapter 14-108 are due in accordance rule 14-108.004. All penalties and fees not guaranteed by a Surety Bond must be paid to the officer or inspector issuing the citation or permit or detaining the vehicle for nonpayment of penalties prescribed under rule 14-108.005 prior to further operation of the affected commercial motor vehicle on the roads of this State. Payment may be in cash, by cashier's check or by money order. In the event that payment is not made when payment is due, the motor vehicle will be impounded in accordance with sections 316.3025 or 316.545, Florida Statutes. When a Surety Bond has been properly filed and accepted by the Department, the vehicle will be released upon presenting written evidence of the surety bond to the officer or inspector detaining the vehicle the citation or permit will be issued to the owner or driver of the vehicle, and payment must be remitted to the officer or inspector who issued the citation or permit within ten working days of the release of the vehicle date of issuance. Company checks may be accepted when a proper Surety Bond is on file. In the event that payment is not made within ten working days of release of the vehicle, the Department will take action to recover the penalty amount from the surety bond. Motor vehicles impounded in accordance with this rule will be released upon payment of the penalty or the posting of a bond pursuant to Section 316.545, Florida Statutes, or upon a determination by the Commercial Motor Carrier Review Board to cancel or revoke the penalty or upon the issuance of a Department order setting aside the penalty as the result of a proceeding held pursuant to section 120.57, Florida Statutes. Motor vehicles released as a result of the posting of a bond under section 316.545, Florida Statutes, remain subject to the lien imposed by that statute. The Department's amendments to chapter 14-108, Florida Administrative Code, are, in relevant part, as follows: 14-108.002 Definitions * * * "Notice of Noncompliance" means a notice issued to a motor carrier that advises the motor carrier of violations found during a terminal audit/compliance review and identifies the penalties that will be assessed if the violations are not corrected within 60 days of receipt of the notice. "Notice of Violation" means a written notice which identifies violations of safety laws and regulations found during the conduct of a terminal audit/compliance review and assesses penalties pursuant to these rules. Such a notice will be issued after violations are found and penalties are to be assessed under this Chapter. (5) "Penalty" means a monetary amount prescribed by statute as a civil penalty to be assessed administratively for violation(s) of safety laws and regulations found during the conduct of a terminal audit/compliance review. (6) "Terminal Audit" or "Compliance Review" means an onsite investigation at a motor carrier's terminal or office of property carrier or passenger carrier records such a driver's hours of service, maintenance and inspection, driver qualification, commercial drivers license requirements, financial responsibility, accidents and other safety and business records to determine compliance with the safety laws and regulation. The investiga- tion will compliance review may result in the initiation of an enforcement action to include the assessment of the applicable penalty(ies) prescribed by statute and this rule chapter. 14-108.003 Applicability; Compliance Required * * * Any person or motor carrier who operates or causes or permits nonpublic- sector buses to be operated on any road, street, or highway open to travel by the public in the transportation of passengers shall be in compliance with the applicable safety laws and regulations contained in section 316.70, Florida Statutes, and Title 49 C.F.R. Parts 382, 385 and 390 through 397 301, 393, 394 and 396. Any person or motor carrier found to be in violation of these rules during the conduct of a terminal audit or compliance review shall be subject to the penalties herein described. The penalties prescribed by rule 14-108.105 will be waived and a notice of violation will not be issued if, as a result of the first terminal audit or compliance review conducted of a Motor Carrier, the Motor Carrier corrects the described violations within 60 days after receipt of a written notice of noncompliance. Penalties for the following violations will not be waived under the above provision, even if they are found during the first terminal audit or compliance review and are corrected immediately. Failure to comply with controlled substance testing requirements Exceeding driver hours of service. Violations involving hazardous materials. Lack of valid commercial driver's licenses, including revoked, suspended or cancelled licenses. 14-108.004 Administration: Enforcement. All penalties imposed and collected in accordance with these rules shall be paid to the treasurer, who shall credit the total amount collected to the State Trans- portation Trust Fund in accordance with section 316.3025(5)(b), Florida Statutes. Penalties assessed as a result of a terminal audit are due and shall be paid no later than ten working days after receipt of the notice of violation, unless a timely appli- cation is made to the Commercial Motor Vehicle Review Board under rule 14A-1.007, in which case the penalty (or the remaining part thereof) is due and shall be paid no later than ten working days after receipt of a written decision by the Review Board sustaining the penalty in whole or in part. Whenever any person or motor carrier violates the provisions of these rules and becomes indebted to the State because of such violation(s) and refuses to pay the appropriate penalty, the penalty becomes a lien upon the property including the motor vehicles of such person or motor carrier and may be foreclosed by the State in a civil action in any court of this state as prescribed by section 316.3025(4), Florida Statutes. Motor vehicles of the person or motor carrier will be detained and impounded for nonpayment in accordance with Rule 14-87.002. The adopted amendments to Chapter 14A-1, Florida Administrative Code, are, in relevant part, as follows: 14A-1.004 Meetings The Review Board shall sit as an admin- istrative body in equity to consider testimony or written documents in mitigation, extenuation, modification, cancellation, revocation, or maintenance of any penalty or penalties imposed pursuant to 316.540, 316.545, or 316.3025, Florida Statutes. Only penalties which have been paid or for which a section 316.545 bond has been posted, will be considered by the Review Board. However, this provision shall not prevent the owner of a motor vehicle that has been impounded for nonpayment from receiving a Review Board hearing. Further, as provided in Rule 14-108.004, a motor carrier may obtain a Review Board hearing on penalties assessed as a result of a terminal audit prior to payment or posting of a bond. Review Board meetings may be scheduled as often as determined necessary, based on a sufficient number of penalties being avail- able for review to justify the expense of hold a meeting. The Review Board shall meet not less than six times per year. Location of meetings shall be determined by the Review Board. Upon timely written request, cases involving Florida based persons will be scheduled at the next meeting held in their geographic area. However, cases involving requests for Review Board conside- ration of unpaid penalties imposed for violations found during a terminal audit will be scheduled for the next meeting regardless of location. Upon timely written request, cases involving non-Florida based persons will be scheduled at the next meeting of the Review Board. Persons may request the scheduling of their case at a specific city at which the Review Board meets. Such requests must be in writing to the Commercial Motor Vehicle Review Board, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0450. * * * 14A-1.007 Timely Written Request for Meeting Any person who is aggrieved by the imposition of a civil penalty imposed upon the pro- visions of Section 316.545 or 316.3025, Florida Statutes upon compliance with Rule 14A-1.004, after payment of the penalty, or posting a Section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office in writing within 60 days of the date of the Penalty Notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested. The request shall set forth in detail the basis of the protest and all matters to be considered so that the Review Board can be prepared to discuss the issue at the meeting if the protestor does not appear. The request must be received within 60 days. A written request for Review Board consideration of a penalty imposed for violations found during a terminal audit must be submitted and received within ten working days after receipt of the notice of violation in order to be considered timely and such written request must be submitted via hand-delivery or certified mail. 14A-1.008 Appearances Those persons, firms or corporations who have been assessed a penalty for violations of Section 316.540, 316.545, or 316.3025, Florida Statutes, and have complied with the requirements of Rules 14A-1.004 and 14A-1.007 either have paid the penalty or posted a Section 316.545, Florida Statutes, bond shall appear in person, through an authorized representative or by legal counsel. Each person shall be given ample time to explain the reasons for seeking relief. The Review Board, at its discretion, may inquire into any testimony presented at the meeting or written statements presented. Testimony also may be received from the agency that imposed the penalty. Although Mr. Walker testified that he never received notice of rule- making to amend Chapter 14A-1, Florida Administrative Code, he did not present evidence that he requested notice. Nor did he argue that the amendments were otherwise invalid. Chapter 18, Motor Carrier Compliance Operations Manual As stated in its first paragraph, Chapter 18, "Collection of Civil Penalties", within the Motor Carrier Compliance Operations Manual, the purpose of Chapter 18 is, to establish a uniform procedure for the collection of overweight penalties and other commercial vehicle penalties assessed pursuant to Florida Statutes and, Department Rules. (DOT Exhibit Number13) Like the rules of DOT in 1995, the Chapter 18 procedures provided for immediate collection of a penalty, or posting a bond or impoundment of a vehicle at the time enforcement action is taken. Although agency personnel invoked Chapter 18 as part of their basis for seeking immediate payment by H. B. Walker, the provisions of the Chapter nowhere specifically mention penalties assessed as the result of terminal audits. On April 15, 1996, the agency issued Enforcement Bulletin 18-001, to be inserted in Chapter 18 describing procedures for imposition and collection of civil penalties associated with terminal audits. Those procedures are the same as the procedures described in the rule amendments addressed in paragraphs 18 through 20, above.
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.
