Findings Of Fact Facts admitted by all parties FDOT adopted Rule 14-26.0131 in August 1989. Since 1986, FDOT has had a policy of authorizing special permits for ocean-going sealed containerized cargo units as expressed in the policy statement effective March 13, 1986. FDOT recognizes that Florida's competitive position in world trade is important to the economy of the State of Florida as a whole. FDOT did not consider Florida's competitive position in world trade as a governing factor in determining to repeal Rule 14-26.0131. FDOT decided to repeal Rule 14-26.0131 because it determined that the rule was unconstitutional. FDOT decided that the rule was unconstitutional because it provided a benefit to transporters of ocean-going sealed containerized cargo units which benefit was not available to transporters of domestic containerized cargo units. The decision to settle the lawsuit brought by the Florida Trucking Association did not lead to repeal of the rule. Rather, the decision to repeal the rule led to the decision to settle the lawsuit. In determining that the rule was unconstitutional, the effect that repeal of the rule would have on Florida's competitive position in world trade was not a controlling consideration. FDOT recognized at the time it decided to repeal the rule that those competing in world trade would suffer increased cost by the repeal. FDOT decided to repeal the rule before it prepared the written economic impact statement. Based on the information in the Department's possession regarding the detrimental effects upon industry, FDOT still decided to repeal the rule. Other than review of the report referenced in the economic impact statement, FDOT did not analyze the economic impact repeal of the rule would have on transporters of ocean-going sealed containerized cargo units. FDOT did not estimate the benefit repeal of the rule would provide to transporters of nonocean-going sealed containerized cargo units. FDOT issued the following number of overweight permits in the years 1986 through 1991: Year Trips Blankets 1986 27,251 5,533 1987 26,814 4,937 1988 28,733 4,901 1989 27,613 2,745 1990 23,749 1,507 1991 27,326 1,158 15. Of the total overweight permits issued in the years 1986 through 1991, the following were for vehicles transporting oceangoing seal containerized cargo units: Year Trips Blankets 1986 0 159 1987 0 519 1988 229 484 1989 10,221 105 1990 8,119 1 1991 10,864 27 The FHWA authorizes states to permit vehicles weighing more than 80,000 pounds carrying loads which cannot be easily dismantled or divided. FHWA has advised the states that the determination of whether a load can be easily dismantled is one to be determined at the state level as expressed in the correspondence dated August 30, 1968, to Governor Riley of South Carolina. As stated in the August 30, 1986, memorandum, the FHWA has no difficulty in construing containerized cargo involved in international trade as nondivisible loads. Citrus is a major economic industry of Florida. Florida citrus packers compete for the European and Asian markets with other citrus producing countries and other fruit commodities. FDOT published an economic impact statement. FDOT complied with publication and hearing requirements. Facts established by evidence at hearing The FDOT policy which immediately preceded the subject rule was expressed as follows in a policy statement effective March 13, 1986: Sealed containerized cargo units will be considered as nondivisible loads and special permits will be issued to operate vehicles hauling such units on the state highway system of this state, subject to the following restrictions: Such containerized cargo units must be part of international trade and be moved on the highways due to importation from, or exportation to, another country. The operators of such units shall at all times have in their possession the international bills of lading to verify that such units are being operated pursuant to this policy. A special permit issued for the hauling of any containerized cargo units covers only transport with the unit's contents as originally loaded onto a vehicle, and becomes invalid once the original contents are added to, dismantled, or divided. The gross weight imposed on the highway by the wheels of any one axle of a vehicle operating under such special permit shall not exceed 25,000 pounds, and the total weight with load imposed upon the highway by all the axles of the vehicle shall not exceed 95,000 pounds. As of the effective date hereof, this policy will serve as the Department's position and practice until such time as appropriate guidelines are incorporated into rules promulgated under the Florida Administrative Code. The Department's 1986 policy statement was grounded in the Federal Highway Administrator's letter to the then-Governor of South Carolina, Richard W. Riley, which stated, inter alia, that ". . . based on the needs of international commerce and possible tax implications for bonded cargos, we [the FHWA] have no difficulty in construing containerized cargo involved in international trade as a nondivisible load" for purposes of authorizing such cargos as one of the exceptions to the 80,000 pound weight limit contained in 23 U.S.C. 127. The Department's 1986 policy statement was codified as Rule 14- 26.0131, Florida Administrative Code, effective August 2, 1989. The subject rule reads as follows, in pertinent part: This rule is being adopted to allow state regulations to conform to the permitted provisions of the memorandum of the Director, Motor Carrier Transportation, Federal Highway Administration (FHWA), dated December 30, 1985. Subject: "Vehicle Size and Weight". Ocean-going sealed containerized cargo units, to include such cargo units with wheels installed and such cargo units without wheels, will be considered as non-divisible loads (as defined in 23 U.S.C. 127) and may apply for permits exempting them from the State's overall gross vehicle weight limit of 80,000 pounds. Movements in which the sealed containerized cargo unit does not actually travel in international waters or the container is to be opened in any manner during movement between the origin and destination, other than for customs inspection, are not eligible for permits under this rule. Because of the very heavy nature of the load to be carried and the potential for increased damage to the highway from vehicles so loaded, no straight truck, as defined in Section 316.003(70), Florida Statutes, shall be eligible for a permit pursuant to this rule. Criteria for issuance of permit. The applicant must submit proof of the following: That the container for which the permit is sought, is in direct transit to or from an international seaport, for purposes of import or export of the container on an ocean-going vessel; That the container is part of international trade or trade to or from a U.S. jurisdiction outside the continental limits of the United States; That the container must be moved over roads on the State Highway System of the State of Florida, as defined in Chapter 334, Florida Statutes; and A statement swearing that the container for which permit is sought is the container to be directly exported or imported; that the contents of such container are as originally loaded; that the container has not been opened during movement between origin and destination; and that the original contents are not to be added to, dismantled, opened, or divided until they reach the identified final destination. Federal law places a weight limit of 80,000 pounds on all trucks traveling the highways within the state of Florida. Failure by the Department to enforce the law to the satisfaction of the Federal Highway Administration (FHWA) could result in the state's being declared ineligible for a portion of the federal transportation funds allocated to it. While federal and state law authorizes the Department to grant special permits to overweight trucks, it does not require or contemplate that the Department will as a matter of policy allow all sealed containerized cargo to exceed the statutorily-prescribed 80,000 pound weight limit. In December of 1989, the Florida Trucking Association and others filed a lawsuit in Federal District Court challenging the constitutionality of Rule 14-26.0131, Florida Administrative Code. The Department sought to have the lawsuit dismissed, but the Federal Magistrate denied the Department's motion to dismiss. Following the denial of the motion to dismiss, a Department staff attorney, Mr. Reynold Meyer, was asked to review and assess the Department's position in that lawsuit. Mr. Meyer summarized his view of the matter in a memorandum dated October 2, 1990, in which he stated, among other things: On December 8, 1989, the Florida Trucking Association filed the above-referenced law suit challenging the constitutionality of the Department's Containerized Cargo Rule. Thus, the Florida Trucking Association is not only directly attacking the Department's Containerized Cargo Rule but is also indirectly attacking the Federal Highway Administration's policy as stated by Mr. Barnhart. The complaint alleges the Department's Containerized Cargo Rule violates the constitution by (1) placing an undue burden upon interstate commerce; (2) discriminating against intrastate and interstate commerce; and (3) denying the plaintiffs equal protection of the law. If this case goes to trial, Judge Stafford will decide three legal issues. The first legal issue is whether the rule promotes safety upon Florida's highways and conserves their use. The second issue is whether the safety and conservation purposes of the rule outweigh the interference with interstate commerce. The third issue is whether the rule's distinction between international containerized cargoes and all other types of containerized cargoes is rationally related to a legitimate state interest. The first two issues should be decided in the Department's favor. The third issue, however, may not be decided in the Department's favor. Any unfavorable decision on the third issue will be the result of the Department's lack of a rational basis for distinguishing between international containerized cargo and all other types of containerized cargo. Because the rule, in essence, discriminates between international containerized cargo and all other types of containerized cargo the Department's chances of prevailing at trial are forty percent (40%) or less. The Department's General Counsel agreed with the opinion that there was a substantial risk that the rule would be found to be unconstitutional. The Department's General Counsel discussed the matter with the Assistant Secretary for Transportation Policy and with the Secretary of the Department. Ultimately, it was concluded by the Secretary, because of the substantial risk that the rule would be found to be unconstitutional, and because the rule appeared to give an unfair advantage to some shippers that was denied to others, that the rule should be repealed. In reaching this conclusion, the Secretary relied on the advice of counsel and on the recommendation of the Assistant Secretary for Transportation Policy. After deciding to repeal the subject rule, the Department negotiated a settlement of the Federal lawsuit challenging the validity of the rule. An essential aspect of that settlement is that the Department would take the necessary action to repeal the rule. As part of the required rule repeal process, the Department prepared and published a summary of the estimate of economic impact of the proposed rule repeal reading as follows: There will be the normal costs associated with processing a rule repeal under the Administrative Procedure Act. These costs include: Legal review and analysis, word processing typing support, publication of notice and rule text in the Florida Administrative Weekly (Currently 64 cents a line), staffing/coordinating costs, and scheduling or conducting a public hearing. There will be no increased operational costs. The repeal of the rule may increase the cost to some operators by reducing the cargo volume, thus potentially increasing the ultimate price to the consumer of those products. The Department has received a report of the effect the repeal of the rule will have upon the Florida Citrus Packing Industry. The Department has considered this report in its attempt to estimate the cost or benefit of the repeal of the rule. However, the Department does not adopt or reject the facts within the report. The Department does not have sufficient data to determine to any degree of specificity the actual economic impact of the repeal of the rule. The repeal of the rule promotes competition by equally protecting those carrying cargo units of international, interstate, or intrastate origin or destination. These economic impact statements were based upon material provided by the Department's State Permits Engineer, the Settlement Agreement, and discovery responses in the above mentioned case, the report of the Florida Citrus Packing Industry. The Department considered an economic report from the Florida Citrus Packing Industry, data furnished by the Department's State Permits Engineer, and discovery responses from the Florida Trucking Association in developing the economic impact statement in question. The report from the Florida Citrus Packing Industry was actually prepared by the Florida Department of Citrus. Prior to initiating rulemaking, the Department contacted Mr. Kinney, a representative of Florida Citrus Packers. During that contact, the Department became aware that the industry was preparing an analysis of the impact of the rule repeal on the citrus industry and requested a copy of the report from Mr. Kinney. The Department recognized and considered the fact that the rule repeal would cause some adverse impact to the Florida Citrus Industry but regarded the fact as noncontrolling. In essence, the Department's economic impact statement concluded that the rule repeal would increase the cost of transporting cargo for those who now rely on the rule but that the Department lacked sufficient data to determine the actual economic impact. In developing its economic impact statement, the Department was concerned about the impact on all industries that rely on the rule. The Department believed the entire Florida economic base must be considered in developing any economic impact statement, and concluded that it did not have sufficient data to determine to any degree of specificity the actual economic impact of the repeal of the rule. After the rule is repealed, Petitioners will not be prohibited from applying for overweight permits. Such permits will be afforded consideration on their individual merits. It is, nevertheless, to be expected that after the repeal of the rule the Petitioners will not be granted as many overweight permits as they have been able to obtain with the rule in effect. Repeal of Rule 14-26.0131 will result in a significant 1/ increase in the transportation costs for shipment of Florida citrus to international markets. As a result of those additional costs either the demand for the fruit and fruit products will be adversely affected if the costs are passed along to the buyers or the profitability of the transactions will be reduced if the sellers absorb the additional costs. The Petitioners regularly ship fresh Florida citrus fruit and frozen Florida citrus fruit products to international markets. They regularly transport such products over Florida highways in containerized loads that have a gross weight exceeding 80,000 pounds. Repeal of the subject rule will cause the Petitioners to incur increased transportation costs.
Findings Of Fact Flora-Bama Farms, was operating a commercial vehicle, traveling west on Interstate Highway 10, on December 1, 1990. The truck stopped at the Department's weight scales located in the area of Sneads, Florida. The Department's Inspector checked the vehicle registration handed to him by the driver. The registration had expired. Using the tag number, the registration was checked on the Department's computer. The computer showed the tag was good until December 31, 1990 and that the truck was registered for a gross vehicle weight of 54,999 pounds. 1/ The total weight of the truck on said date was 76,820 pounds. The total weight exceeded its registered weight by 21,821 pounds. Flora-Bama Farms was assessed a statutory penalty of five cents a pound for all weight over the commercial vehicle's registered gross vehicle weight of 54,999 pounds. At five cents a pound, the penalty assessed was $1,091.05. Tony D-Amico, president and owner of Flora-Bama Farms, had personally registered the truck with the County Tag Agency. He informed the Clerk that he would be carrying 44 fruit bins, weighing approximately one thousand pounds each. Mr. D-Amico did not realize that the weight the truck was registered for should include the vehicle's weight and relied on the employee at the tag office to know the appropriate weight for the truck. Apparently, he did not question and verify whether the gross vehicle weight of 54,999 pounds was adequate for his purposes and paid the tax for the 54,999 pounds gross vehicle weight registration. He had no intent to purposely operate an overloaded truck. After his truck was fined for being overweight on December 1, 1990, he returned to the Tag Agency and increased its gross vehicle weight
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended: RECOMMENDED that a Final Order be entered finding that the penalty of $1,091.05 was correctly assessed against Flora-Bama Farms, pursuant to Section 316.545, Florida Statutes. DONE and ORDERED this 11th day of June, 1991, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 11th day of June, 1991.
The Issue The issue in this case is whether the $490 fine assessed by the Respondent against the Petitioner was unwarranted or incorrect.
Findings Of Fact On May 1, 1989, Wando Trucking, Inc. ("Wando") obtained a trip permit from the Florida Department of Transportation ("DOT") authorizing the transportation of an overweight load. Wando proposed to transport one sealed containerized cargo unit. The permit was valid for one trip from Jacksonville, Florida to the Georgia border and expired on May 5, 1989. The permit contained several special requirements, including the typing, on the cargo packer's bill of lading, of the identification number stamped on the container seal. The DOT considers a permit to be void if permit requirements are not met. Packers of containerized cargo affix numbered seals to the containers. The seals are constructed so as to prevent the opening of a container without destruction of the seal. The DOT's requirement that the seal number be typed is to lessen the opportunity for a carrier to alter the cargo or substitute contraband for a sealed and permitted load. On May 1, 1989, the Wando truck stopped at the DOT weigh station on I- 95 in Yulee, Florida. Upon weighing the vehicle, the DOT employee found the truck, at 89,800 pounds, to be over the legal statutory weight of 80,000 pounds. The DOT employee examined the excess weight permit offered by the Wando driver and found that the container seal number was handwritten, across the bill of lading, rather than typed as the permit requirements stated. The DOT employee completed the appropriate documentation and assessed a fine of $490. The fine was calculated at five cents per pound for the 9,800 pound overage. Wando paid the fine. The evidence does not establish that the assessed fine was inappropriate. The assertion by Wando Trucking, Inc., that there was no intent to violate the permit provisions is irrelevant.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order dismissing the petition of Wando Trucking, Inc. DONE and RECOMMENDED this 13th day of March, 1990, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1990. APPENDIX The Petitioner did not file a Proposed recommended order. The following constitute rulings on Proposed findings of facts Submitted by the Respondent. Respondent The Respondents Proposed findings of fact numbered 1-3 are accepted as modified in the Recommended Order. COPIES FURNISHED: Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Paul F. Tecklenburg, Esq. Post Office Box 1430 Charleston, South Carolina 29401 Vernon L. Whittier, Jr., Esq. Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and on the entire record of this proceeding, the following Findings of Fact are made. The Agency is authorized to license nursing home facilities in the State of Florida and, pursuant to Chapter 400, Part II, to evaluate nursing facilities and assign ratings. The Agency conducted a survey of Petitioner's facility from October 8 through 10, 2001. As a result of the survey, the Agency cited Petitioner for "fail[ing] to adequately assess and develop a plan of care to maintain acceptable parameters for a resident resulting in significant weight loss," and issued a Notice of Intent to change its licensure status to conditional. Petitioner timely challenged the conditional rating and filed a Petition for Formal Hearing. Pursuant thereto, a formal hearing was held on March 28 and 29, 2002. The Recommended Order, which was issued on August 14, 2002, recommended that the Agency enter a final order issuing a standard licensure rating to Petitioner and rescinding the conditional licensure rating. On February 18, 2003, AHCA issued a Final Order adopting the Findings of Fact and Conclusions of Law in the Recommended Order, ordering that a standard licensure rating be issued to replace the previously-issued conditional licensure rating, and rescinding the conditional licensure rating. As such, Petitioner was the prevailing party in the underlying case, DOAH Case No. 02-0049, AHCA 2001-071241. No appeal of the Final Order in the underlying proceeding was filed. On April 21, 2003, Petitioner filed a Petition for an Award of Attorney's Fees and Costs (Petition) with supporting affidavits. In the Petition, Petitioner sought relief under both the Florida Equal Access to Justice Act, Section 57.111, as well as pursuant to Subsection 120.569(2)(e). The Agency opposed the Petition. Although Petitioner requested an award of attorney fees under Subsection 120.569(2)(e), it presented no evidence that the Agency had filed any pleadings, motions, or other papers not properly signed or that any were interposed for any improper purpose. Accordingly, the undersigned will not consider an award of attorney fee's under Subsection 120.569(2)(e), and the focus of the evidence presented will be as to Section 57.111. The parties stipulated as to the reasonableness and amounts of the attorneys fees and costs. Reasonable attorney's fees are $21,547.50. The reasonable amount of costs is $4,183.82. The amount of attorney's fees and costs that may be awarded is limited to $15,000.00, based upon Subsection 57.111(3)(d)(2), which the parties agree is applicable to this proceeding. The Health Care Center of Naples, Inc., is a corporation with its principal office in Florida. At the time the underlying action was initiated by the Agency in October 2001, the Health Care Center of Naples, Inc., had a net worth of not more than $2 million. The net worth of Health Care Center of Naples, Inc., on October 31, 2001, was $158,048.65. The net worth of Health Care Center of Naples, Inc., for September 2001 was $190,829.22. The net worth of Health Care Center of Naples, Inc., for November 2001 was $171,726.44. The Administrative Complaint in the underlying proceeding, DOAH Case No. 02-0049, alleged that Petitioner failed to ensure that a resident maintained acceptable parameters of nutritional status. The basis of this allegation was the result of a survey which found that a resident had a significant weight loss from the period between July 30, 2001, to August 11, 2001. The Agency's Final Order, adopting the Recommended Order in Case No. 02-0049, found that the patient's weight loss was expected due to edema or third space fluid, resulting from the patient's being over-dehydrated before her recent surgery. Moreover, in the underlying proceeding, it was found that in determining that the resident had a significant weight loss, "the Agency surveyors based their calculations on an inaccurate usual body weight for the resident." As a result of these and other findings, the Agency's decision to change the status of Petitioner's licensure rating to conditional was rescinded. Although the Agency did not prevail in the underlying proceeding, the surveyors were substantially justified in citing Petitioner for the alleged deficiency, and the Agency was substantially justified in initiating the action. The Final Order found that the usual body weight relied upon by the surveyors in determining that the resident had a significant weight loss was obtained from the records of Petitioner. Also, the record in the underlying proceeding found that many of Petitioner's staff members were concerned about the resident's weight loss and did not consider that the weight loss was caused by edema. Finally, there is no indication in the record that at the time of the survey, Petitioner's staff gave the Agency surveyors any reasonable explanation for the resident's alleged significant weight loss. The evidence, which was the basis of the findings in the Final Order in the underlying proceeding, while available at the time of the survey, was not discovered or known to the surveyors and, to some extent, to Petitioner's staff.
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 The issue in this case is whether the $124.00 penalty assessed against Respondent by the Department of Transportation is legally and mathematically correct.
Findings Of Fact The maximum legal weight allowed for vehicles traveling on a Florida state highway is 80,000 pounds. On November 18, 1991, a commercial motor vehicle owned and operated by Respondent was driving on State Road 15, also known as U.S. Highway 1, in Nassau County, Florida. At that time and place, DOT Weight Inspector R. S. Young weighed Respondent's vehicle on the pit scale at the Hilliard Weigh Station at approximately 23:32 (11:32 PM), using a "split weigh" method because the vehicle exceeded the 56 feet which the DOT scale would accommodate. Inspector Young filled out the Load Report indicating three separate axle weights of the vehicle with a total weight of 82,480 pounds, which exceeded the maximum weight restriction by 2,480 pounds. The fine imposed was $124.00, calculated at five cents per pound by which the scale weight of the vehicle exceeded the maximum weight of 80,000. Respondent paid the fine. The scale at the Hilliard Weigh Station which was used by Inspector Young on November 18, 1991 had been inspected and certified pursuant to statute by the Florida Department of Agriculture on July 24, 1991, four months before the weighing of Respondent's vehicle. On March 4, 1992, approximately five months after Respondent's vehicle was weighed, the Hilliard Weigh Station scale was again inspected and certified by the Florida Department of Agriculture. Neither time was there a discrepancy in true weight which would have materially affected the weighing of Respondent's truck on November 18, 1991. Affording Respondent's position every benefit of the doubt, it is possible, but not proven, that the Hilliard Weigh Station scale could have weighed 80 pounds heavier than the truck's true weight on November 18, 1991. Respondent contended that he had "split weighed" his loaded vehicle earlier on November 18, 1991 on a commercial Howe scale and that the Howe scale weight was accurate in showing his vehicle weighed under the 80,000 pound statutory limit, as opposed to the weight at the Hilliard Weigh Station later the same day, which weight showed the loaded vehicle weighed over the 80,000 pound statutory limit. All witnesses are agreed that if done correctly, a "split weigh" is reasonably accurate for multiple tandem, multiple axle vehicles longer than 51 feet, and it is unrefuted that many of these types of weigh-ins are done regularly at the Hilliard Weigh Station and throughout the industry. The method is specifically permitted for use by law enforcement, in this instance, by DOT. However, the expert testimony of Mr. Robert Garris, Supervisor of Weights and Measures for the State of Florida Department of Agriculture and Consumer Services, is accepted that "split weighs" on a Howe scale are "assuredly inaccurate" because such scales are not manufactured to be used with "split weighs" and that, although DOT is authorized, for law enforcement purposes, to do "split weighs", DOT's scales also are not necessarily any more accurate for use with the "split weigh" method than the Howe commerical scale. Therefore, it is found that if it could be shown by competent evidence that the Howe scale "split weigh" and the Hilliard scale "split weigh" were each done correctly and showed different weights, one weight being "over" and one weight being "under" the statutory limit, DOT could not prevail herein by a preponderance of the evidence. Respondent presented a weight ticket purportedly showing that this loaded vehicle had a gross weight of 76,600 pounds on the Howe scale at 14:29 (2:29 PM) on November 18, 1991, also achieved by a "split weigh" method. Although self-serving, Respondent's direct testimony to this effect is unrefuted, as is his direct testimony that when he weighed his loaded truck on the Howe scale, the Howe scale bore a current Florida Department of Agriculture certification seal. However, the four weights printed automatically onto the Howe scale weight ticket do not add up to the pencilled "76,600" handwritten thereon. Upon Respondent's direct testimony and supporting exhibits, it was also shown that a commercial Certified Automated Truck Scale (CAT Scale) had recorded the gross weight of Respondent's front two axles as only 19,280 pounds on October 9, 1991. The CAT scale, which renders a "full platform" gross weight, provides a more accurate gross weight than the "split weigh" method, but this weigh-in occurred approximately a month before the weighing of Respondent's truck at the Hilliard Weigh Scale on November 18, 1991 and accounted for only two axles and no load. Respondent contended that if one added together the weight of his load as stated by the shipper on his November 18 bill of lading, the manufacturer's weight of 9500 pounds as stamped on the side of the trailer, a weight he personally estimated for nylon ropes to secure the load, possible fuel intake, and the CAT weight of his vehicle's front two axles, Respondent's vehicle weight on November 18 would still have been under 80,000 pounds when it reached the Hilliard scale, and Respondent would not have been subject to an overweight assessment and fine. However, this scenario is speculative. It is speculative because of insufficient predicate for the accuracy of some of the figures named, due to the failure of the numbers on the Howe scale ticket to add up as specified by Respondent, and due to the margin for error when only two axles were weighed a month earlier on the CAT scale.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a Final Order ratifying the assessment and penalty of $124.00. DONE and RECOMMENDED this 17th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17 day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-1872 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1-6, 8 (There is no "6", but the unnumbered paragraph between "5" and "7" is treated as "6") Accepted. 7 Accepted in part and rejected in part because of Respondent's direct testimony which established certain facts found. Respondent's PFOF 1, 13 Accepted that some of this is what the shipper told Respondent and placed on the bill of lading, but it remains hearsay and unpersuasive on the dispositive issue of true weight in light of other exhibits and testimony. Accepted except where contrary to the probative evidence and rejected as unproven and also rejected where unnecessary, subordinate, or cumulative. Specifically, the numbers show a print out of 4 axles, not 3, or four printed items for gross, tare and net pounds. It is not clear which. Also, the total of the four figures are in excess of legal weight limits. See Exhibit R-1. Rejected as not of record and rejected as legal or persuasive argument as opposed to a proposed finding of fact; rejected as not dispositive and as not persuasive. The first sentence is accepted. The remainder is rejected as mere legal or persuasive argument. 5-6, 8-10 Accepted except where unnecessary, subordinate, or cumulative. 7,14 Rejected because much of this is not of record. Otherwise it is unnecessary, subordinate, or cumulative. 20-21, 23 Accepted, except that Mr. Garris did not testify that the Howe scale was certified or accurate. This was Respondent's testimony. 11-12 Rejected as stated because not supported by the record as a whole. Covered accurately in the RO. 15-18 These calculations are rejected as speculative and not supported by any weight ticket. Legal and persuasive arguments are also rejected as not factual proposals. 19 Accepted, but unnecessary, subordinate and cumulative. 22, 24 Rejected as legal and persuasive argument only, not factual proposals. COPIES FURNISHED: Carolyn S. Holifield Chief, Administrative Law Section Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mrs. Thomas Bachota 201 North Shaffer Street Milford, Indiana 46542 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner, M.S. 58 Thornton J. Williams, General Consel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue The issues in this case are (1) whether the Petitioner, the Department of Transportation, should assess against the Respondent, Cypress Creek Landscape Supply, Inc., a penalty for violating the Taylor Road bridge weight restriction, and (2), if so, the amount of the penalty.
Findings Of Fact On February 9, 1990, a commercial motor vehicle owned and operated by the Respondent, Cypress Creek Landscape Supply, Inc., was driven over the bridge over Alligator Creek on Taylor Road (County Road 765A), a federal aid primary highway near Punta Gorda, Charlotte County, Florida. The vehicle, loaded with mulch, was weighed at 71,760 pounds. The Taylor Road bridge is part of a route that can be taken by I-75 traffic wishing to bypass one of the Department's I-75 weight stations. The bridge is posted as being restricted to a maximum weight of 22 tons. The weight restriction is posted at the bridge, and warnings that the weight restricted bridge is ahead appear at conspicuous places at terminals of all intermediate crossroads and road junctions with the section of Taylor Road containing the weight restricted bridge. Notices are posted twice near the exit from I the Respondent's vehicle used to bypass the Department weight station. From these locations, the Respondent's vehicle could have been turned around to avoid the weight restricted bridge. A Department Compliance Officer cited the Respondent for violating the maximum weight restriction for the Taylor Road bridge and assessed a $1,388 penalty, calculated at five cents per pound by which the scaled weight of the vehicle (71,760) exceeded the maximum weight (44,000 pounds). The Department's Form 509-13, Revised 05/89, titled the "Load Report and Field Receipt," specifies that, in subtracting the legal weight from the the scaled weight to determine the amount of overweight, a ten percent tolerance should be added to the legal weight. This is how the Department interprets and applies the requirement of Section 316.545(2)(a), Fla. Stat. (1989), that, for enforcement purposes, all scaled weights of the gross or axle weight of vehicles and combinations of vehicles shall be deemed to be not closer than 10 percent to the true gross weight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order finding the Respondent, Cypress Creek Landscape Supply, Inc., guilty of violating the Taylor Road bridge weight restriction and assessing a $1,168 penalty (reduced from $1,388). RECOMMENDED this 29th day of May, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1991. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Steven P. Lewis, President Cypress Creek Landscape Supply, Inc. 12734 North Florida Avenue Tampa, Florida 33612 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Elyse S. Kennedy Executive Secretary Commercial Motor Vehicle Review Board Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
