Findings Of Fact The facts reveal that Jose Gonzalez, a driver for the Respondent, operating one of Respondent's tractor/trailer pieces of Respondent, went to a rock company located in Hollywood, Florida, on February 13, 1978, for the purpose of picking up a load of "P" rock. This rock was purchased from Miramar Lakes, d/b/a Miramar Rock on that date and the driver, Gonzalez, was given a weight ticket. The weight ticket from Miramar Rock reflected a gross weight of 72,360 pounds, which is the total of the equipment and load. (The scales at Miramar peck used to weigh the Respondent's equipment and load had been certified by the Petitioner to be accurate on June 7, 1977, and again on April 11, 1978.) The weather on February 13, 1978, was clear and the purchase, loading and weighing done on the subject equipment was without incident, until the driver attempted to pull away from the weight scales. At that moment the universal joint and yoke snapped and this caused the vehicle to be inoperable. Gonzalez left the truck at the Miramar Rock Company. At that point, the load was covered by a canvas and the trailer was not seeping or leaking water from the rock aggregate. Later, on February 13, 1978, a mechanic employed by the Respondent came to effect repairs to the vehicle, but due to the unavailability of certain parts necessary to complete the repairs, did not finish the work until February 14, 1978. When the repairs had been completed on that date, the driver, Gonzalez, removed the truck from the Miramar Rock compound and entered the roads of Broward County, Florida. At around 9:15 a.m. on February 14, 1978, Gonzalez arrived at the intersection of Hollywood Boulevard and Flamingo Road in Broward County, Florida, eastbound on Hollywood Boulevard. At that intersection, officers employed by the Florida Highway Patrol, Weights Division, intercepted the Des Rocher truck and caused the vehicle to stop. After the stop the equipment being operated at that time was established to be a vehicle measuring between 37 feet to 38 feet from the front axle to the rear axle, and the peak of the rock load was located in the center rear portion of the trailer. Officer Wilkerson of the Florida Highway Patrol observed water dripping out of the rear tailgate after making the stop. Gonzalez was asked to produce a weight ticket and in response to this request produced the weight ticket given him by Miramar Rock on February 13, 1978. Officer Wilkerson commented that this ticket was from the day before and that a ticket bearing the current date was required. Gonzalez was then told that the truck would be weighed with the method for weighing the truck being by two portable scales. Officer Wilkerson weighed one side of the truck and Officer Herron went to the other side of the truck. Wilkerson weighed the steering axle on his side of the truck; the drive axle on his side of the truck, and two tires on the rear tandem axles on his side of the truck. It is not known what Officer Herron did, if anything, in effecting the purposes of this inspection and weigh-in, because Officer Herron did not appear at the hearing in this cause and was not seen by Officer Wilkerson in conducting his inspection activities, if any. Therefore, the total weight of the truck as ascertained from the inspection ostensibly conducted by these officers was not shown by competent evidence. However, it was demonstrated through the testimony in this hearing that the plan which the officers had for making the roadside inspections was one which called for basically stopping all trucks of the category of aggregate haulers that were eastbound through the intersection on Hollywood Boulevard, to the exclusion of pickup trucks and moving vans. After stopping the former category of trucks, some were weighed and others were not. As a result of the stop, Gonzalez was ticketed for a weight violation and that ticket was in the amount of $136.45 as an assessed penalty. Gonzalez then took the truck back to the Des Rocher installation which contained a set of scales and between 10:15 a.m. and 10:30 a.m. the truck was weighed and shown to be 35.64 tons, or 71,280 pounds as the gross weight including the equipment and load. (The scales that were utilized had been certified by the Petitioner on June 7, 1977, and again on May 8, 1978.)
The Issue Whether a commercial motor vehicle owned by Respondent exceeded the posted weight when it crossed a "low limit" bridge in rural Brevard County, Florida on June 3, 1992, in violation of Section 316.545, Florida Statutes. Whether extenuating circumstances justifies the reduction or elimination of the proposed penalty for the alleged violation.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 316, Florida Statutes, which regulates the weight and load of commercial motor vehicles on the state highway system. State Road 520, in Brevard County, Florida, is a part of the state highway system, and title to the right-of-way for said highway is held in the name of the State. A bridge which crosses over the St. Johns River on State Road 520 (SR520) in Brevard County, Florida, had a weight limit of 80,000 pounds for motor vehicles until October 20, 1991. On that date, the maximum weight for vehicles was reduced to a limit of 56,000 pounds. On May 26, 1992, the weight limit was again reduced, and the Department posted a new weight limit for the bridge of 30,000 pounds. On June 3, 1992, a commercial motor vehicle owned by Respondent was traveling northbound on Interstate 95 (I-95). The vehicle exited I-95, proceeded westbound on SR 520, and crossed the bridge. After the vehicle crossed the bridge, it was stopped by a Department Transportation Officer, and taken to a nearby pit scale. The weight of the vehicle was accurately determined to be 56,140 ponds. The Transportation Officer then imposed a fine of $1,307.00 on the vehicle, based on 5 cents per pound above the posted weight limit of 30,000 pounds. The penalty was paid by M & M Truck Service, and the vehicle was permitted to proceed. M & M Truck Service sought a refund of the penalty from the Commercial Motor Carrier Review Board. The Board authorized a 50 percent refund under its policy providing for a 50 percent refund when vehicles exceed a posted weight limit within 30 days of the date of a posted weight reduction. The following standard weight limit signs, each showing a 30,000 pound weight limit, had been posted by the Department on SR 520, from I-95 to SR 528, on May 26, 1992: Facing Eastbound on SR 520 (in Brevard County): Just east of I-95: "Weight Limit Last Exit" Just west of I-95: "Weight Limit" (no distance to bridge stated) 2 miles east of the bridge and just east of SR 524: "Weight Limit 2 Miles" Just east of the bride: "Weight Limit" Facing Westbound on SR 520 (in Orange County): Just west of SR 528: "Weight Limit 9 Miles" 4.2 miles west of bridge: "Weight Limit Restriction Ahead" (no distance to bridge state) 4 miles west of bridge: "Weight Limit 4 Miles" Just west of SR 532: "Weight Limit Last Exit" 2 miles west of the bridge: "Weight Limit 2 Miles" Just west of the bridge on the St. Johns River: "Weight Limit" The above signs meet current MUTCD standards. MUTCD refers to the Federal Highway Administration Manual on Uniform Traffic Control Devices, 1988 Edition, which has been incorporated by reference into Florida Administrative Code Rule 14-15.010. SR 520 was under construction at the time the vehicle crossed the bridge, and the driver did not observe the signs posted by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that a penalty correctly assessed to M & M Truck Service, Inc., under the provisions of Section 316.545, Florida Statutes, and that no refund of the reduced penalty of $653.00 should be made. DONE and ENTERED this 8th day of June, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1993. APPENDIX Petitioner's proposed findings of fact: Accepted in substance by stipulation. Respondent's proposed findings of fact: Consisted of argument directed to the stipulated facts and need not be specifically ruled upon. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Gary E. Moses, President M & M Truck Service, Inc. 313 Shadow Oak Drive Casselberry, Florida 32707 Ben G. Watts, Secretary Attn: Michelle Arsenault #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue is whether Petitioner correctly assessed Respondent with a penalty in the amount of $4,754 based on the overweight permit violations set forth in Load Report Citation Number 141945M.
Findings Of Fact On or about September 22, 1998, Respondent requested an overweight trip permit from Petitioner. Respondent needed the permit to haul a kiln section using a truck tractor and a semi- trailer from the Alabama state line, along I-10 and I-75, to Newberry, Florida. Respondent's permit request included the specific axle spacings and axle weights of its vehicle and load together with other criteria necessary for the permit. On October 7, 1998, Petitioner issued Respondent an overweight trip permit, Permit Number QU025021. The permit was effective October 7, 1998, through October 11, 1998. The permit incorporated the axle spacings and axle weights of Respondent's vehicle and load as additional requirements for the permit. The permit stated that it could be voided if any of its terms or conditions were altered or violated. Without a permit, Respondent's vehicle and load would have been limited to a legal weight of 80,000 pounds. The permit allowed a gross weight of 180,420 pounds. On October 8, 1998, Respondent's loaded vehicle stopped at Petitioner's truck weighing station on I-10 near Sneads, Florida. The truck tractor and semi-trailer with its cargo weighed 175,080 pounds. In other words, Respondent's loaded vehicle weighed 95,080 pounds over the legal limit for a truck tractor and loaded semi-trailer without an overweight permit. The Florida Department of Agriculture inspects Petitioner's scales at roadside truck weighing stations to ensure that they are accurate within .2 percent tolerance. There is no evidence that the scales at issue here were improperly calibrated. Petitioner's Weight and Safety Inspector, John Miles, requested Respondent's driver to present a valid overweight permit. The truck driver presented Inspector Miles with Permit Number QU025021. Inspector Miles then requested the driver to park the vehicle in a straight line. Next, Inspector Miles hooked one end of the measuring tape on a railroad iron and held the other end while measuring the axle spacings. Inspector Miles determined Respondent had been operating its loaded vehicle with the following axle spacings: from 1 to 2 = 15'5" from 2 to 3 = 4'5" from 3 to 4 = 13'3" from 4 to 5 = 4'7" from 5 to 6 = 48'8" from 6 to 7 = 4'7" from 7 to 8 = 4'7" from 8 to 9 = 10'11" from 9 to 10 = 4'6" Permit Number QU025021 authorized Respondent to operate the vehicle and load with the following axle spacings: from 1 to 2 = 16'1" from 2 to 3 = 4'5" from 3 to 4 = 14'8" from 4 to 5 = 4'5" from 5 to 6 = 44'0" from 6 to 7 = 4'5" from 7 to 8 = 4'5" from 8 to 9 = 14'8" from 9 to 10 = 4'5" Inspector Miles issued Respondent Load Citation Report Number 141945M. That citation states that Permit Number QU025021 is void due to incorrect axle spacing on the subject vehicle. The citation assesses Respondent with an administrative fine in the amount of $4,754 or five cents per pound for every pound over 80,000 pounds.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is
Findings Of Fact Petitioner McGowan was dismissed from his position as State Trooper by Respondent by letter dated 31 January 1978 (Composite Exhibit 1) which recites that the action in dismissing Petitioner is based upon Petitioner's violation of General Order No. 43 2.1C, Insubordination, third offense, and Rule 22A- 7.10(7)(a) Florida Administrative Code. McGowan was advised of his right to file a grievance pursuant to the agreement between Florida and the PBA or appeal the dismissal to the Career Service System. McGowan opted for the former and during the course of that hearing raised the issue before the Arbitrator that G.O.'s 40 and 43 were rules and invalid because not promulgated as required by Chapter 120 Florida Statutes. Respondent contested the jurisdiction of the Arbitrator to resolve this question, the parties stipulated that this issue be submitted to DOAH for determination, and the Petition here involved was filed. G.O. 40 relates to physical fitness of members of the Florida Highway Patrol and, after pointing out that weight control is an important part of physical fitness, provides in pertinent part: Members shall maintain control of their weight in relation to their height, age, and body build. There are several charts and tables available indicating the ideal or desirable weight based on the above factors. The maximum allowable weight by height for all ages and body builds for the members of the Florida Highway Patrol shall be those used by the Federal Bureau of Investigation. See G.O. 41, Appendix A. Exception to the maximum limits may be made for members who have a large amount of muscle weight (without excessive fat) and a physician certifies that the individual is not overweight due to excess fat. Failure to comply with the maximum weight limits will result in a low rating for personal appearance on the employee evaluation form and disciplinary action may be taken for violation of this regulation, as provided in G.O. 43. G.O. 43 contains guidelines for establishing standards of disciplinary actions and for appeals to the Career Service Commission. Guidelines for disciplinary actions are contained in Section 2.1 of G.O. 43 which provides in pertinent part: C. Guidelines: The following guidelines are established to insure that all supervisors are being reasonably consistent in taking disciplinary actions against employees involved in similar situations. These guidelines may be expanded or modified from time to time to meet changing conditions and to make their use more effective. They shall be followed generally; however, it is realized that some of the offenses and deficiencies will be more frequent in some cases, and the supervisor may take or recommend another course of action. In no case will these guidelines be binding on the Department as the disciplinary action it shall take. G.O. 43 goes on to provide in the recommended table of Disciplinary Actions following the above quoted provision that for the third offense of insubordination the offender may be dismissed. By letter dated August 10, 1976 (Composite Exhibit 1) Petitioner was advised by Respondent that he was 60 pounds overweight, that his doctor had stated Petitioner's back problem is greatly aggravated and brought about by the overweight problem, and he was directed to make a concerted effort to reduce weight. By letter dated April 7, 1977 (Composite Exhibit 1), Petitioner was suspended from duty for 8 hours without pay for insubordination based upon failure to lose weight as directed in the August 10 letter. By letter dated September 28, 1977 (Composite Exhibit 1) Petitioner was suspended from duty for 16 hours without pay for insubordination for not conforming to weight regulations. By letter dated January 31, 1977 (Composite Exhibit 1) Petitioner was dismissed for the third offense of Insubordination for not conforming to weight regulations. On one or more occasions petitioner was granted sick leave by reason of back problems associated with being overweight.
The Issue The issue in this case is whether Petitioner should change the rating of Respondent's license from standard to conditional.
Findings Of Fact Petitioner is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes (2001). Respondent operates a licensed nursing home located in Ft. Myers, Florida (the facility). (All chapter and section references are to Florida Statutes (2001) unless otherwise noted.) Petitioner conducted a survey of the facility on August 16, 2001. Petitioner determined that Respondent violated the standards of 42 Code of Federal Regulations (CFR) Section 483.25(i)(1) with respect to the dietary care of residents 20, 6, and 8. Florida Administrative Code Rule 58A-4.1288 makes the federal standards applicable to nursing homes in the state. Petitioner prepared a survey report that sets forth the basis for the alleged violations under "Tag F325." F325 is a shorthand reference to the regulatory standard of the CFR. Petitioner assigned the deficiency in F325 a severity rating of class "II." Section 400.23(8)(b) defines a class II deficiency as one that has: compromised the resident's ability to maintain or reach his or her highest practicable physical, mental and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services. The surveyors for Petitioner testified that a Class II rating was appropriate because each of the cited residents experienced a significant weight loss that the facility could have prevented with better dietary care. Petitioner changed the license rating for the facility from Standard to Conditional within the meaning of Section 400.23(7). The change in license rating was effective August 16, 2001. The Conditional license rating continued until September 18, 2001, when Petitioner changed Respondent's license rating to Standard. The regulatory standard of Tag F325 requires a nursing home to: ensure that a resident maintains acceptable parameters of nutritional status such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible. 42 CFR Section 483.25(i)(1). The State Operations Manual (SOM) sets forth agency policy with respect to how surveyors are to interpret and apply the regulatory standard of Tag F325. In determining if a facility has maintained a resident's body weight at an acceptable level, the SOM guidelines direct surveyors to evaluate the significance of unplanned weight loss. A significant weight loss occurs when a resident loses five percent or more of his or her body weight in one month, 7.5 percent or more in three months, or 10 percent or more in six months. However, the guidelines caution surveyors that ideal body weight charts have not been validated for the elderly and that weight loss is only a guide in determining nutritional status. If a resident has experienced a significant weight loss, the facility may nonetheless comply with the regulatory standard of Tag F325, if the Resident has clinical conditions that demonstrate that the maintenance of the Resident's weight at an acceptable level is not possible. The SOM indicates that clinical conditions that demonstrate that the maintenance of acceptable nutritional status may not be possible include advanced diseases such as cancer and a Resident's refusal to eat. Even in the absence of an identified disease process, the weight loss is considered unavoidable if the facility has properly assessed the resident, developed a care plan for the resident, consistently implemented that care plan and periodically re- evaluated the care plan. Resident 20 suffered from end-stage Alzheimer's disease and cancer. Like many persons afflicted with end stage Alzheimer's disease, Resident 20 began to refuse to eat food in November 2000. Residents with end-stage Alzheimer's disease refuse to eat because they no longer are aware of the need to eat and do not recognize any hunger pangs. As a result, they typically experience weight loss in their final months of life. As early as October 2000, facility staff determined that Resident 20 was refusing to eat and developed a care plan for her. In November 2000, the facility dietician placed Resident 20 on a high calorie diet that offered her almost 4000 calories a day. The dietician also changed the consistency of Resident 20's diet from pureed to liquid in an effort to get her to consume more calories. However, Resident 20 continued to eat poorly. Resident 20's weight dropped from 151.6 pounds to 147.2 pounds between November 15, 2000, and December 20, 2000. Between December 20, 2000, and January 24, 2001, Resident 20 lost only six tenths of a pound to 146.6 pounds. Resident 20's weight loss during two months between November 2000 and January 2001 was only three percent of her actual body weight. A three percent loss of body weight is not a significant weight loss under the SOM guidelines. The facility dietician did not recommend any changes to Resident 20's dietary care plan for several reasons. Resident 20's weight had stabilized. The dietician believed that Resident 20's refusal to eat was a product of Alzheimer's disease and could not be reversed. Resident 20 had not experienced any significant weight loss. The dietician's decision not to make any revisions to the care plan was consistent with good dietary practice and relevant regulatory standards. Between January 24 and February 28, 2001, Resident 20's weight dropped to 134.2 pounds. The weight loss was 8.5 percent of the resident's body weight. The parties stipulated that this weight loss was significant within the meaning of the SOM. The facility dietician reassessed Resident 20 and concluded that the weight loss was attributable to a refusal to eat caused by Alzheimer's disease. The dietician placed Resident 20 on weekly weight monitoring. The facility dietician correctly determined that there was no dietary intervention that would make Resident 20 consume more food. Both parties acknowledged that an end-stage Alzheimer's patient will progressively decline and that the patient's consumption gets worse, not better, over time. The dietician did not make any recommended changes to Resident 20's dietary orders. Instead, the dietician recommended that staff discuss with the physician and family members the possibility of placing a feeding tube in Resident 20. The facility arranged a meeting with the physician for Resident 20 and family members in March 2001, to discuss the possibility of a feeding tube for Resident 20. The family refused to consent to the placement of the feeding tube in Resident 20. Resident 20 had issued an Advance Directive which prohibited that intervention. Resident 20 passed away on May 7, 2001. The facility did not violate the requirements of Tag F325 by failing to try or even consider new care plan interventions to prevent Resident 20's weight loss between March 1 and May 7, 2001. The facility could have offered Resident 20 smaller portions more frequently, instead of larger portions three times a day, or could have changed the temperature of the liquids offered to Resident 20. The facility could have offered Resident 20 supplements between meals. However, there is no evidence that the available interventions would have been effective. Resident 20's cognitive decline was so severe that it is unlikely the available interventions would have had any positive effect on Resident 20. No regulatory standard required the facility to change the dietary care plan interventions for Resident 20 prior to the significant weight loss in February 2001. The facility provided Resident 20 with every reasonable intervention for the resident's dietary care. Resident 20's diet provided her with more than enough calories. Changing the amount or frequency of food offerings would have had no positive impact on Resident 20's consumption because of the resident's diminished cognitive capacity. The absence of physician's orders for supplements for Resident 20 had no adverse effect. The facility's policy is to offer supplements throughout the day to all residents on the unit in which Resident 20 resided. The facility offered these supplements to Resident 20, but they did not improve her consumption or otherwise stem her weight loss. The facility provided adequate dietary care to Resident 20. The facility offered Resident 20 fluids at three different meal times in addition to supplements throughout the day. Resident 20's appetite and consumption did not improve. The refusal to eat was not related to her distaste for the food offered to her, the quantity of the food offered to her, or the frequency of feeding. Rather, the refusal to eat was a product of her inability to understand what food was and the need to eat. It was thus appropriate for the surveyor to conclude that additional interventions would not have been effective and should not have been employed. The significant weight loss experienced by Resident 20 was unavoidable due to clinical conditions. The SOM guidelines acknowledge that weight loss should be expected in a resident who has a terminal illness or whose diminished cognitive capacity results in a refusal to eat. Resident 20 possessed both of these clinical conditions. The facility admitted Resident 8 in July 2001, for rehabilitative care after surgery for a fractured femur. Upon admission, Resident 8 weighed 106.8 pounds. Her ideal body weight was approximately 98 pounds, and her usual body weight was between 100 and 105 pounds. The admitting body weight may have been high due to swelling in Resident 8's leg. The facility measured and monitored Resident 8's weight weekly for four weeks pursuant to the facility's protocol for all new admissions. The facility dietician assessed Resident 8's food preferences and nutritional needs at the time of admission. The dietician designed a diet to meet Resident 8's needs and preferences. Resident 8 was cognitively alert and physically capable of feeding herself. Resident 8 did not require any special assistance to consume her food other than for staff to set up her feeding tray. Resident 8 was at risk for weight loss due to poor intake upon admission. Facility staff decided not to develop a dietary care plan for Resident 8 because the resident was above both her ideal and usual body weights. The decision not to develop a dietary care plan was within the sound discretion of facility staff. The failure to develop a dietary care plan for Resident 8 did not violate the standard of Tag F325. The dietary plan for Resident 8 maintained the Resident's body weight at acceptable levels for the first three weeks of her stay at the facility. Resident 8's weight on July 25, 2001, was 104.2 pounds. On August 1, 2001, Resident 8's weight was 106.2 pounds. On August 8, 2001, however, Resident 8's weight dropped to 100.2 pounds. On August 9, 2001, the resident's weight was 99.8 pounds. Resident 8's ideal body weight was approximately 98 pounds. The facility discharged Resident 8 on or about August 9, 2001, upon successful completion of her rehabilitation before another weight could be measured. A threshold issue that must be determined is whether Resident 8 experienced a significant weight loss. Respondent stipulated at the administrative hearing that Residents 20 and 6 experienced significant weight losses during their stays at the facility, but refused to concede that point with regard to Resident 8. As noted earlier herein, SOM guidelines indicate that a significant weight loss occurs if a resident loses 5 percent of his or her body weight in the "interval" of one month. The SOM guidelines prescribe a formula for determining the percentage of weight loss. The formula requires usual weight to be reduced by actual weight. The result is divided by usual weight, and that result is multiplied by 100. Resident 8's usual body weight ranged between 100 and 105 pounds when she was admitted to the facility. Use of the high-end of that range in the SOM formula would produce the highest percentage of weight loss for Resident 8. The formula for calculating the significance of the Resident's weight loss produces a number that is less than the 5 percent weigh loss that must be present to satisfy the test of significant weight loss, e.g.: usual weight loss (105) less actual weight (99.9) equals 5.2. The result (5.2) is divided by usual weight (105). The result (.0495) is multiplied by 100 to determine the percentage of weight loss (4.95 percent). The parties stipulated at hearing that Resident 8 lost 6.5 percent of her body weight between July 18 and August 9, 2001. However, that percentage is based upon a comparison of her actual body weights rather than the usual-body-weight formula prescribed in the SOM. Petitioner provided no evidence to justify a deviation from the SOM formula generally used for determining significant weight loss in this case. Even if such a deviation were justified, Resident 8 did not experience a significant weight loss within the meaning of the SOM guidelines. The guidelines indicate that the minimum interval for evaluating a resident's weight loss is one month. Resident 8's actual weight loss occurred in the eight-day period between August 1 and 9, 2001. That is less than the one-month interval established in the SOM guidelines. Even if July 18, 2001, were used as the beginning point for evaluating Resident 8's weight loss, the one-month interval for determining if a significant weight loss had occurred did not expire and would not expire until August 18, 2001. The facility discharged Resident 8 on or about August 9, 2001. Petitioner's surveyor testified that if Resident 8 were to have stayed in the facility for 30 days and if her weight had returned to that present before she began her weight loss, there would have been no significant weight loss. Petitioner provided no evidence that indicated that a resident's weight loss should be evaluated over some time period shorter than the one month period established in the SOM guidelines. Resident 8's case illustrates at least one reason why the SOM guidelines caution surveyors against strict reliance on the amount of a resident's weight loss to determine the resident's nutritional status. Resident 8's body weight never dropped below her ideal body weight while she was admitted to the facility. A weight loss which occurs over a one-week period, and which only results in the Resident dropping to her ideal body weight, does not indicate that the Resident is malnourished. Assuming arguendo that Resident 8 experienced a significant weight loss at the facility, the weight loss was not caused by the failure of facility staff to develop a dietary care plan. It is undisputed that facility staff assessed Resident 8 for her nutritional needs and provided her with an adequate diet to meet those needs. It is also undisputed that, prior to the Resident's weight being taken on August 8, 2001, the facility had no reason to believe or know that the diet that it had prescribed for Resident 8 or the Resident's consumption of that diet might be inadequate. Resident 8's weight remained at or near its admission level under the dietary regimen that the facility prescribed for her for those three weeks. Petitioner was unable to identify one intervention that should have appeared in a dietary care plan that the facility did not actually provide to Resident 8 or that would have prevented the weight loss experienced by Resident 8. The surveyor who developed the allegations regarding Resident 8 is a nurse and not a dietician. The surveyor alleged that Resident 8 was anxious, had been ill when she was admitted, and that the facility had not appropriately assessed whether those factors would affect Resident 8's appetite. Resident 8 did not express such problems to the facility dietician. If it were determined that those problems existed at the time of admission, they were not significant because Resident 8 maintained her usual body weight during the first three weeks of her stay at the facility. When the Resident's weight loss was identified on August 9th, the facility added fortified foods to her diet. Fortified foods are the appropriate dietary response to Resident 8's identified weight loss. The facility provided Resident 8 with all appropriate dietary care. Resident 6 had been a resident at the facility since November 29, 1999. Between May 9 and June 13, 2001, Resident 6 experienced a weight loss of 6.5 percent. The parties stipulated that this loss was significant. However, Resident 6's weight of 152 pounds on June 13th remained above his ideal body weight of 144 pounds. During the period of weight loss, Resident 6 experienced a urinary tract infection for which he was receiving anti-biotic therapy. It is not uncommon for a resident to lose his or her appetite and to have a corresponding weight loss during such treatment. The surveyor for Petitioner who prepared the case involving Resident 6 is not a dietician. The surveyor charged that Resident 6's weight loss was avoidable because the facility failed to assess Resident 6's protein needs after he developed the urinary tract infection and because the facility did not closely monitor Resident 6's food intake. Petitioner offered no evidence to show what additional calorie or protein requirements the facility did not provide to Resident 6. The facility monitored the resident's low consumption levels and attributed them to his antibiotic therapy. The facility dietician is a dietary expert. There is no dietary standard that requires dieticians to reassess a resident's nutritional needs when the resident has an infection. Instead, good dietary practice allows the infection and antibiotic treatments to run their course. Thereafter, the dietician should monitor the resident's consumption and weight to see if he or she returns to normal. The facility dietician assessed Resident 6 after the infection cleared and after the antibiotic treatment had been completed. The dietician determined that Resident 6's consumption was good. The weight loss Resident 6 experienced was attributable to his decreased appetite while on antibiotic therapy. Resident 6's weight remained stable after his infection cleared, and his treatment was completed. Resident 6's ideal body weight is 144 pounds. The facility determined to maintain Resident 6's weight at 150 pounds. The significant weight loss experienced by Resident 6 was the unavoidable consequence of clinical conditions in the form of the illness he experienced and the treatments he received for that illness. The weight loss was not caused by inadequate dietary care by the facility. Moreover, Resident 6 remained above his ideal body weight and, therefore, did not experience any harm. On or about July 12, 2001, the facility obtained an albumin level for Resident 6 of 2.9, which was below the suggested normal laboratory range of 3.5 to 5.0. The surveyor for Petitioner charged that the facility did nothing to address this low lab value but conceded that Resident 6 did not experience any harm as a result of that failure. The SOM guidelines indicate that surveyors should not expect normal lab values for all residents they review because abnormal values are to be expected with certain disease processes. Resident 6 was severely compromised by cardiac problems, dementia, a prior stroke, diabetes, prostate cancer, and Alzheimer's disease. He died shortly after the survey in this case. His albumin level of 2.9 was indicative of his diseased condition rather than his nutritional status. Accordingly, the facility did not violate any standard of good dietary practice when it did not consider or implement dietary interventions for the low albumin level.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order finding no basis to issue a Conditional rating to the facility on August 16, 2001; deleting the deficiency described under Tag F325; and issuing a Standard rating to the facility to replace the previously issued Conditional rating. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 6th day of September, 2002. COPIES FURNISHED: R. Davis Thomas, Jr. Qualified Representative Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Dennis Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310 St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
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 issues concern the intention by Petitioner to levy an $836 fine for the alleged operation of a commercial vehicle on a low-limit bridge when the commercial vehicle exceeded the weight limit for that bridge. See Section 316.545, Florida Statutes.
Findings Of Fact On December 17, 1990, a commercial vehicle driven by William Roy Grayson for the carrier Massey Franklin (Massey Trucking) came into Florida from Georgia on US Highway 17. In doing so it crossed the bridge over the St. Marys River. Petitioner has jurisdiction over that bridge. Petitioner in accordance with law had limited the weight that could be placed on that bridge by a commercial vehicle. That weight restriction was 32 tons. The commercial vehicle in question was weighed shortly after entering Florida at an inspection station operated by Petitioner. It weighed 80,720 pounds. Persons such as Mr. Grayson who operate commercial vehicles coming into Florida across the subject bridge are warned of the weight limit on the bridge by posted signs using symbols from the manual on Uniform Traffic Highway Administration as the national standard in accordance with Title 23 US Code. Those silhouette symbols used to post the weight limit for the bridge show a single unit truck with the weight limit of 27 tons and a combination truck with a weight limit of 32 tons. The truck in question was a combination truck. These warning signs on the weight limit were posted in Georgia at the time in question for the south bound traffic. Respondent's truck was south bound on that date. The first sign in Georgia before you enter Florida states "weight limit restrictions ahead." The second sign provides weight limit symbols showing a combination truck with a limit of 32 tons and notes that the distance from that restriction is three miles. The third sign before arriving at Scrubby Bluff Road in Georgia has the weight limit symbol of 32 tons for a combination truck and notes that this is the last exit before being restricted in weight. A fourth sign shows weight limit symbols with 32 tons for a combination truck and an arrow describing the exit from Scrubby Bluff Road to Interstate 95. The truck in question exceeded the weight limit by 16,720 pounds and was assessed a fine .05 per pound for a total penalty of $836.
Recommendation Based upon the consideration of the facts and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which imposes a fine in the amount of $836, pursuant to Section 316.545(3)(b), Florida Statutes. DONE and ENTERED this 5th day of July, 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 5th day of July, 1991. APPENDIX The proposed facts by the Petitioner are subordinate to facts found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Franklin Massey Massey Trucking 101 Wind Creek Lane Enterprise, AL 36330 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether or not Petitioner correctly assessed a penalty against the Respondent in the amount of $585.00 on May 6, 1991. 1/
Findings Of Fact Steve Ward has been employed by Petitioner, Department of Transportation in the motor carrier compliance section for approximately three years. His official duties include, inter alia, weighing trucks, checking license plates, fuel permits and insurance compliance. On May 6, while working at the official weight station in Old Town, Florida, Steve Ward weighed a truck owned by Respondent which had a gross weight of 91,700 pounds. The load was a "multi-load" which consisted of a crane counter weight and a roll of cable. Respondent's driver presented Ward with a state of Florida "blanket permit". Upon reviewing the permit, Steve Ward advised Respondent's driver that since his truck carried a "multi-load", the blanket permit was ineffective and therefore the maximum load allowed on his vehicle was 80,000 pounds. Steve Ward completed a load report and field receipt and gave a copy of the report/receipt to Respondent's driver, Pat Wheeler. Respondent was assessed a $585.00 penalty for operating a vehicle with a load 11,700 pounds over the 80,000 pound maximum load limit. Steve Ward followed the standard procedures in weighing Respondent's vehicle. The weight scales at the Old Town Official Station in Dixie County are inspected semi-annually pursuant to Petitioner's rules and regulations. As stated, Respondent, or a representative on its behalf, failed to appear at the hearing to contest the penalty assessed against its driver, Pat Wheeler, on May 6.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a Final Order denying Respondent's request for a refund of the penalty assessed against it on May 6, 1991 in the amount of $585.00. DONE and ENTERED this 14th day of January, 1992, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1992.
