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.
Findings Of Fact Respondent owns and operates a Citgo Food Mart in Naples at which it sells gasoline and diesel fuel at retail, provides limited motor vehicle service, and sells food and beverage items. Petitioner issued Respondent retail dealer's fuel license #21- 000828, which authorizes Respondent to sell motor fuel at retail and requires Respondent to collect and remit to Petitioner motor fuel taxes. The principal of Respondent is Jack Stellman. He caused Respondent to purchase the business in April 1993 from the fuel wholesaler, which had purchased it from the previous retailer. The previous retailer had suffered business and personal setbacks that necessitated the sale. Mr. Stellman and his wife, Phyllis, who claims not to be an officer or employee of Respondent despite her considerable involvement, have contributed much personal capital and labor to the new business. Immediately after taking over the business, Mr. and Mrs. Stellman discarded outdated inventory, fired a number of dishonest employees, eliminated prostitution that had been taking place on the premises, added new equipment such as a pressure fryer and hood system, and started advertising. Cash flow was a problem for Respondent from the start. The major improvements were completed by the fall of 1994. By early 1994, however, Mr. Stellman had quit taking a salary from Respondent. Over the 19-month period from August 1993 through March 1995, Mr. and Mrs. Stellman borrowed $140,000 from a variety of sources, including from their retirement plan, from relatives, and on property that they own individually. Despite these infusions of cash, Respondent was unable to stay current with certain important creditors, such as their fuel supplier, the Internal Revenue Service, and Petitioner. In August 1993, the fuel wholesaler began to demand payment on delivery, instead of in 30 days, as it had done previously. The wholesaler shortened the credit terms on fuel after Respondent fell behind in payments shortly after beginning operations. In any event, the change in credit terms involved monthly volumes of typically 40,000-50,000 gallons. The loss of use of money corresponding to the wholesale purchase of this amount of fuel does not begin to explain the tax deficiencies that Respondent ran up. Respondent's deficiencies on its motor fuel tax also began in August 1993. Returns are filed the month following the month for which the motor fuel tax is due. For August 1993, Respondent filed a return in which it underremitted the motor fuel tax by $62.15. The next month, Respondent filed a return in which it remitted $2000 and left an unremitted balance of $2867.49. The next month, Respondent filed a return, but remitted none of the $6077.28 of motor fuel tax due. For November 1993, the next month, Respondent filed a return and remitted $2000, leaving an unremitted balance of $3278.78. For December 1993 through July 1994, Respondent filed returns but remitted no tax. The total tax deficiency for this eight-month period was $58,300.87, or an average of $7287.61. In the 12-month period ending with the July 1994 return, Respondent had failed to remit a total of $70,586.57. For the August, September, and October 1994 returns, Respondent made partial remittances. For August and September, Respondent left unremitted balances of only $15.34 and $84.30, respectively, remitting a total of $11,315.49. For October, Respondent remitted $4827.90, leaving an unremitted balance of $2623.98. For November 1994, Respondent filed a return, but failed to remit any of the $5983.74 due. In the summer of 1994, the Stellmans finally sold their house in New York, but realized less cash than they had expected. In October 1994, the Stellmans applied for a loan on their Florida residence. During the same month, they began negotiations with Texaco to convert their Citgo convenience store into a Texaco outlet. The Stellmans believed that they would receive $225,000 from Texaco, which would be sufficient to pay their fuel wholesaler and Petitioner, convert their service operation into more store space, and acquire additional inventory and working capital. The record does not permit a finding whether $225,000 would cover all of these items. In any event, the Texaco negotiations did not proceed quickly. The fuel wholesaler threatened litigation over the prospective cancellation of its contract to supply Respondent with fuel and oil. And Petitioner's representatives were increasingly unsatisfied with Respondent's lack of progress in paying back taxes. Repeatedly, the Stellmans promised payments that did not materialize. At the same time, Respondent was not remitting motor fuel taxes currently. For December 1994 through March 1995, Respondent did not even file returns. During this four-month period, motor fuel taxes due and unremitted totalled $32,106.59. The total of unremitted motor fuel taxes for August 1993 through March 1995 was now $111,400.52, exclusive of penalties and interest. Penalties for the underremittances for the period August 1993 through March 1995 totalled $60,284.67. Interest for the same period totalled $14,042.88. The total of tax, penalties, and interest was thus $185,728.07. Respondent later reduced this deficiency by paying a total of $323.48 of penalties and $4154.52 of interest, so the current totals are tax of $111,400.52, penalties of $59,961.19, and interest of $9888.36, for a total of $181,250.07. The interest is current through August 1, 1995, and the daily interest thereafter is calculated by multiplying the tax deficiency by 0.000328767. Mr. and Mrs. Stellman claim that the $185,728.07 deficiency arose due to business setbacks, but the business setbacks that they have shown do not account adequately for the deficiency. The Stellmans clearly began the business badly undercapitalized. Mr. and Mrs. Stellman attribute part of the financial problems to bad debts suffered by Respondent. From August 1993 through the end of 1993, the Stellmans pursued seasonal business by offering liberal credit terms, which eventually resulted in worthless accounts receivable. However, the total bad debt was only $15,000. Although hardly meriting mention, except perhaps to reveal their lack of insight, the Stellmans also complain that they lost cash flow due to ill- advised advertising deals into which they entered where they traded fuel for advertising. Even ignoring the benefits derived from such agreements, Respondent traded only about $4000 worth of fuel under these arrangements. Together, these claimed business setbacks of no more than $20,000 constitute less than 18 percent of the taxes, penalties, and interest owed Petitioner. The amount of motor fuel tax that Respondent would have collected on $20,000 worth of fuel would be around $1500. With more zeal than business acumen, the Stellmans attacked the challenge of a new business. Their lack of business sophistication, not fraud, led the Stellmans to convert the motor fuel taxes from current payables to long- term debt, to underreport the amount of fuel pumped on 12 of 19 returns filed with Petitioner during the period in question, and repeatedly to file returns late, so as to lose the collection allowance normally given retail dealers. The unwillingness of Petitioner to become a long term creditor was manifested dramatically when, on May 4, 1995, Petitioner issued an emergency order suspending Respondent's retail dealer's fuel license. The emergency suspension took place after a meeting of Petitioner's Emergency Response Group, which, after reviewing the facts, determined that this was the best course of action to prevent the loss of motor fuel tax. The Stellmans complain that Petitioner did not give them enough time to try to pay the tax deficiencies. However, the record does not justify the Stellmans' demand that Petitioner share their confidence in their ability to take care of this substantial debt. As late as mid-February 1995, the Stellmans were still making unfulfilled promises to pay, as when they assured a Naples employee of Petitioner that Respondent would pay $10,000 by mid-April. This sum was not paid, nor were the motor fuel taxes that Respondent collected at the time even paid currently. In other words, Respondent was still taking the motor fuel tax that it was collecting from customers and applying it to other debts. The Stellmans never told Petitioner what they expected to net from the Texaco agreement. They never explained why the negotiations took so long to conclude. In early 1995, Petitioner's representatives justifiably saw: 1) new financing never resulted in any reduction of the outstanding deficiencies and 2) the outstanding deficiencies continued to grow as Respondent continued to collect motor fuel tax and apply it to other purposes. The record is not entirely clear as to the status of Respondent with respect to unremitted or unpaid taxes in April 1995 and following. Respondent owed $34,861.20 in unremitted sales tax, as of May 1, 1995. However, it appears more likely than not that, during at least part of the period subsequent to May 1, 1995, Respondent remitted and paid to Petitioner its currently accruing tax obligations. With the cessation of fueling operations, these obligations arose from sales of convenience store items, as these sales were unaffected by Petitioner's action against Respondent's retail dealer's fuel license. Since the suspension of the license, the Stellmans have supplied Petitioner with accurate, current information concerning Respondent's tax liabilities, at least to the extent that they possess such information. Respondent's financial condition is precarious, at best. Even assuming that the Stellmans were willing to continue to contribute more money to Respondent, there is nothing in the record to suggest that they have the financial resources to contribute substantial sums beyond a large fraction of the total currently due Petitioner in this case. Such a payment would probably come from a combination of the Stellmans' assets and the assets of friends and family. Their obvious failure to prepare and follow a feasible business plan does not bode well for Respondent's future ability to operate and, at the same time, retire what has become a substantial financial liability owed to Petitioner.
Recommendation It is RECOMMENDED that the Department of Revenue enter a final order: 1) suspending Respondent's retail dealer's fuel license for the lesser of six months from the date of the final order or until Respondent pays the sums described in paragraphs 38 and 39 and executes a promissory note with the conditions set forth in paragraphs 38 and 39 and 2) revoking Respondent's retail dealer's fuel license at the expiration of six months from the date of the final order unless Respondent has paid the above-described sums and entered into the above-described promissory note. ENTERED on October 27, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on October 27, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5-7: rejected as recitation of evidence and subordinate. 8: adopted or adopted in substance. 9-10: rejected as subordinate. 11: adopted or adopted in substance. 12-18: rejected as subordinate. 19-21: adopted or adopted in substance. 22-23: rejected as subordinate. 24-26: adopted or adopted in substance except the taxpayer is Respondent, not Mr. Stellman individually. 27: rejected as subordinate. 28: adopted or adopted in substance. 29-35: rejected as subordinate. 36-37: adopted or adopted in substance. 38: rejected as subordinate. 39: rejected as unsupported by the appropriate weight of the evidence. 40-43: adopted or adopted in substance. 44: rejected as recitation of evidence. Rulings on Respondent's Proposed Findings 1-7: adopted or adopted in substance, although the "great expense" in paragraph 7 is rejected as unsupported by the appropriate weight of the evidence. 8-10: rejected as unsupported by the appropriate weight of the evidence. The financial problems were minor. 11: adopted or adopted in substance to the extent relevant. 12-13: rejected as subordinate. 14: rejected as speculative. 15: rejected as unsupported by the appropriate weight of the evidence. 16: rejected as irrelevant. 17: adopted or adopted in substance. 18-19: rejected as subordinate. 20: adopted or adopted in substance. 21: rejected as unsupported by the appropriate weight of the evidence except that the filings is rejected as irrelevant. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Francisco Negron, Jr. Assistant Attorney General Office of the Attorney General The Capitol, Tax Section Tallahassee, FL 32399-1050 Christian B. Felden Felden and Felden 2590 Golden Gate Parkway Suite 101 Naples, FL 33942
Findings Of Fact On or about September 11, 1989, a commercial, dump truck owned by Petitioner, Alamazan Brothers Trucking, Inc., was travelling on State Road 807. Mr. Michael Roberts, Safety and Hazardous Materials Officer for Respondent, Department of Transportation, noticed that the truck did not have the required identification on the door and stopped the truck for further investigation. After the truck stopped, Mr. Roberts noted that the truck possessed an expired temporary license tag, and the driver did not have a valid registration for the truck. Mr. Roberts, then, weighed the truck with his portable scale and calculated a gross weight of 65,900 pounds. Mr. Roberts gave the driver the opportunity to contact the owner of the truck about the registration and, in accordance with policy of the Department, allowed the owner over one hour to produce a valid registration. A representative of the owner appeared and showed Mr. Roberts a duplicate registration certificate purchased the same day as the incident which indicated that the authorized gross weight for the truck was 24,680 pounds. Mr. Roberts made the determination that the registration was not valid at the time of the stop and imposed a fine for overweight of $1,545. The fine was calculated for the amount of the gross weight in excess of 35,000 pounds times five cents per pound. Existent law establishes that, for the purposes of calculation of a penalty such as the one at issue, the authorized gross weight for an unregistered vehicle is 35,000 pounds. An additional $50 was imposed as the fine for not having the required identification on the door of the truck. The total penalty of $1,595 was paid under protest. However, Petitioner did, in fact, have a valid registration on the day of the stbp. Through administrative delay, the registration certificate had not been mailed to Petitioner. On or around September 7, 1989, Petitioner purchased the truck and a temporary tag was issued to Petitioner by the dealer from which he purchased the truck. At that time, an application for registration was made to the Department of Highway Safety and Motor Vehicles. The application was for a registration authorizing a gross weight of 64,000 pounds. Petitioner had not received the permanent tag or registration by the date the stop occurred. After Petitioner was alerted at the stop, Petitioner obtained a duplicate registration within the time allotted to him by Respondent. This duplicate, the one shown to Mr. Roberts on the day of the stop, indicated an authorized gross weight of 24,680 pounds, an obvious typographical error. The gross weight did not match the gross weight applied for, instead, it duplicated the amount of the empty weight into the gross weight category. On September 13, 1989, Petitioner returned the form to the issuer and requested a corrected duplicate registration. The second duplicate also was in error. This time the form indicated the correct gross weight of 64,000 pounds, but, also, repeated that gross weight amount in the empty weight category. At the hearing, Petitioner also presented the application for registration which indicated it had applied for and was taxed for a gross weight of 64,000 pounds. It was only due to administrative delay that the correct registration was not presented at the time of the stop. However, no competent evidence was received which indicated that the truck did possess the required identification on the door, and Mr. Robert's testimony about the lack of such identification is deemed credible. Although the correct gross weight for which Petitioner is licensed is 64,000, his load at the time of the stop was 65,900 or 1,900 in excess of his 64,000 pound authorized amount. At five cents a pound his penalty for overweight should be $95.00 and not $1,545.00. The $95.00 plus the $50.00 for the failure to display the required identification yields a corrected fee of $145.00 and a refund due to Petitioner of $1,400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation issue a Final Order correcting the fine imposed on Petitioner, establishing the appropriate fine at $145.00 and refunding $1,400 to Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990. JANE C. HAYMAN 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 June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2088 The following represents the rulings on the proposed findings of fact submitted by the parties. The rulings are by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact portion of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate. RESPONDENT Adopted in relevant part in paragraphs 1,2 and 3. Adopted in relevant part in paragraphs 4,5 and 9. Adopted in relevant part in paragraphs 6,7,8 and 10. COPIES FURNISHED: Dewey H. Varner, Esquire Varner, Cole & Seaman 2601 Tenth Avenue, North, Suite 410 Lake Worth, Florida 33461 Vernon T. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scanlan Interim General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Petitioner Schooley Cadillac, Inc. is a dealer in Cadillac automobiles in West Palm Beach, Florida. The firm requires its salesmen to purchase a new Cadillac automobile each year. When a salesman decides to acquire the new automobile, an order is placed with the Cadillac Motor Car Division and delivery is made some eight to ten weeks thereafter. During the interim period, the salesman's used automobile is placed in petitioner's used car department and sold to a customer. State sales tax is collected by petitioner and remitted to respondent based on sales of the used cars. Title to the used car is transferred from the salesman to petitioner at the time it is resold. Although there is no contract or purchase agreement executed between the salesman and petitioner for the purchase of the new automobile, he is credited with the sale price of the used car on the books of the petitioner at the time the used car is sold. When the salesman's new car arrives, an invoice is prepared that reflects the amount credited to the salesman for the used car on the purchase price of the new car as a "previous trade." State sales tax is collected by petitioner and paid to the state on the price of the new automobile, less the amount credited for the used automobile. Petitioner handles a lesser number of transactions for General Motors retirees and a few winter residents using basically the same procedures involving purchases of new automobiles and prior sale of the individual's used car. In such cases, however, title to the used car is normally transferred to petitioner prior to its sale. (Testimony of Eichhorn) Respondent's tax examiner examined the books of petitioner in 1977 and determined that credit should not have been allowed for the price of the used automobiles in determining the amount of sales tax payable to the state because he viewed the amounts credited for the used automobiles as "down payments" rather than "trade-ins." Based upon 33 such transactions which took place between May 1, 1974 through April 30, 1977, a Notice of Proposed Assessment was prepared and sent to petitioner on August 2, 1977, in which delinquent sales tax in the amount of $9,814.44 was claimed, together with a penalty in the amount of $2,367.19, and interest through June 23, 1977, in the amount of $1,703.79, for a total assessment of $13,885.39. A prior Notice of Proposed Assessment in a somewhat larger amount had been scaled down after certain credits had been allowed to the petitioner. The 33 transactions in question involved 24 sales to petitioner's salesmen and the remainder to General Motors retirees or regular customers. As a result of the proposed assessment, petitioner filed its petition for an Administrative Hearing in the matter. At the hearing, petitioner conceded that tax was payable on three of the transactions in which used vehicles were not sold by the petitioner. These three transactions involved the purchase of new automobiles for the price of $7,500 and $5,200 respectively, and the purchase of a motorcycle for $375, thus making a total of $13,075 upon which petitioner acknowledges sales tax in the amount of 4 percent is due. Such tax amounts to $523, plus applicable interest and penalties thereon. (Testimony of Eichhorn, Elliot, Exhibits 1-2)
Recommendation That petitioner Schooley Cadillac, Inc. be held liable for sales tax under Chapter 212, Florida Statutes, in the amount of $523, plus an appropriate amount for penalty and interest thereon. Done and Entered this 7th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Robert W. Jensen and James Adams, Esquires 186 Southeast 13th Street Miami, Florida 33130 Edwin J. Stacker, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Respondent, Sanwa Growers, Inc., owns and operates over the highways of the state of Florida a commercial vehicle identified as a 1987 Ford truck, VIN 9BFPH70P3HDM03333, Florida license number H1056W (vehicle). On November 13, 1990 the Respondent's vehicle while traveling on highway I-4 in Hillsborough County, Florida was stopped and weighed by the Department. The total weight of the vehicle was 24,100 pounds consisting of 10,540 pounds on the steering axle and 13,560 pounds on the rear axle. A Load Report and Field Receipt was completed which indicated the legal weight (declared gross vehicle weight) of the vehicle to be 19,999 with a tax class weight (gross vehicle weight) of 24,100 pounds which resulted in the vehicle being 4,101 pounds overweight. The Respondent was assessed a penalty of $0.05 per pound for each pound the truck was overweight which resulted in a total penalty assessed the Respondent of $205.05. The Respondent paid the penalty as assessed and was issued a Field Receipt. The gross vehicle weight (GVW) of the vehicle as declared by the Respondent in accordance with Section 320.01(12), Florida Administrative Code, on vehicle's registration certificate issued on September 19, 1990 was 19,999 pounds which was the legal weight indicated on the Load Report issued on November 13, 1991. On November 13, 1990 the GVW (legal weight) of the vehicle as declared by the Respondent was 19,999 pounds. The GVW of the vehicle as declared by the Respondent on the initial registration dated May 11, 1988 was 29,500 pounds. However, on the subsequent registration of the vehicle dated January 4, 1989, the declared GVW by the Respondent was 16,090 pounds which was the same as the net weight of the vehicle shown on the registration. Although the registration issued on January 4, 1989 expired on December 31, 1989, there was no evidence of a registration being issued upon expiration. The next registration that was issued subsequent to January 4, 1989 that is in evidence was issued on September 19, 1990 apparently for the purpose of increasing the GVW from 16,090 pounds to 19,994 pounds. This was the registration in effect at the time the vehicle was weighed on November 13, 1990. On November 15, 1990, two days after the weighing, the registration was corrected by increasing the GVW from 19,999 pounds to 29,500 pounds. There was insufficient evidence to show that the GVW set out in each of the registrations in evidence was not the GVW as declared by the Respondent at the time of issuing the registration or that the issuing agency incorrectly listed the GVW as declared by the Respondent on any of the registrations in evidence. On November 13, 1990 the Respondent's vehicle was 4,101 pounds overweight when stopped and weighed in Hillsborough County, Florida on I-4 and the calculation of the penalty ($0.05 x 4,101 pounds - $205.05) is correct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Department enter a Final Order finding the Respondent subject to the penalty as assessed and denying its request for refund of the penalty. DONE and ENTERED this 9th day of October, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 9th day of October, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-3727 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Covered in the Preliminary Statement but adopted in substance as modified in Findings of Fact 1 through 3. Adopted in substance as modified in Finding of Fact 1. Adopted in substance as modified in Finding of Fact 8. Adopted in substance as modified in Findings of Fact 2 and 4. - 6. Adopted in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent did not submit or file any proposed findings of fact. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458 Wendy Wheelock Qualified Representative Sanwa Growers, Inc. 5107 State Road 674 East Wimauma, FL 33570 Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue The issue for determination is whether Respondents owe Petitioners approximately $2,642.69 for one truck load of watermelons provided by Petitioners at the instigation of Respondents' agent.
Findings Of Fact Petitioners are producers of agricultural products, watermelons; and Respondent F.H. Dicks Company (FHD), is a dealer of such products in the course of its normal business activity. Respondent South Carolina Insurance Company is the bonding agent for Respondent FHD pursuant to Section 604.20, Florida Statutes. Petitioners generally deal on a cash basis with customers, unless the customer is someone with an established business relationship with Petitioners. Even then, the period that a customer is permitted credit is very limited, normally not exceeding two or three weeks. Two or three days before May 17, 1989, Wiley Bennet, an employee of an individual named Tom Killmon, approached Petitioners regarding the purchase of a quantity of watermelons for certain parties represented by Killmon's business. On May 17, 1989, Bennet called Greg Long and ordered a trailer load of watermelons on behalf of FHD. The unwritten agreement or understanding between the parties was that the melons were to be U.S. number 1 grade and medium in size. Further, a price of eight cents per pound was agreed upon by Bennet and Long. Bennet sent a truck to Petitioners' loading area where it was loaded and returned. Subsequently, the truck was weighed to determine the poundage of melons loaded. The shipment weighed only approximately 3,800 pounds and the parties determined that more melons should be loaded. The truck returned to Petitioners' loading area at approximately 5 p.m. on May 17, 1989, and more melons were added to the load. The truck was weighed again to determine the amount of the shipment. The total load weighed 45,880 pounds. Pursuant to his normal method of doing business and his previous discussion with Bennet, Long expected payment for the total poundage of 45,880 pounds on the evening of May 17, 1989, at the time the final weight of the shipment was determined. Further, although he was familiar with FHD, he was not accustomed to doing business with FHD through the agency of Killmon. He followed the truck to the weight scales where he offered Bennet the opportunity to examine the load, but Bennet declined. When the matter of payment for the load was broached, Bennet stated he did not have a check at the time, but that payment would be forthcoming in "a day or so." As explained by Bennet at the final hearing, he made this statement to Long because he thought the load of melons would be accepted on delivery and money to pay Long would become available. Bennet's statement to Long that he did not have a check with which to make payment corroborates Long's testimony that the agreement between the parties contemplated payment upon completion of loading and weighing of the truck prior to departure of the shipment to its ultimate destination. Petitioners did not intend to "ride the load in" and receive payment after delivery of the melons to FHD's customer. The truck, loaded with watermelons departed,carrying the melons to a customer of FHD located in Hickory Hill, North Carolina. The melons arrived at that destination approximately 36 hours after departure from the loading area on May 17, 1989. Upon arrival in North Carolina on May 19, 1989, a federal fruit and vegetable inspection revealed that the load of melons was 28 percent out of grade. Further, six percent of the load was damaged as the result of bruising. FHD's intended customer refused to accept the truckload of fruit. The melons were then transported to FHD's facility in Barnwell, South Carolina. After disposing of those melons that were damaged, approximately 8,750 pounds in weight, FHD sold the remaining 1,750 melons to a peddler. After paying transportation and inspection costs from the proceeds of that sale, FHD sent Long a check on May 28, 1989, in the amount of $694.60. On June 7, 1989, Long sent an invoice to FHD requesting further payment in the amount of $2,642.69. This amount reflected a deduction by Long for the 28 percent of the load of melons determined to have been "out of grade" as a result of the inspection, but apparently does not reflect the payment of $694.60 already made by FHD. FHD did not pay Long the additional invoice amount. Long subsequently initiated this proceeding by filing Petitioners' claim in the amount of $3,670.40 on July 25, 1989. That claim was amended by Long on August 31, 1989, to reflect the amount invoiced to FHD, $2,642.69. Testimony at the final hearing establishes that the melons in this instance were subjected to extensive damage and bruising as a result of the handling accorded the fruit in the process of inspection in North Carolina. As stated in testimony of F.H. Dicks IV, a load of melons, after inspection, "is about ready for the dump."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring Respondents to pay Petitioners the sum of $2,642.72 minus any of this amount which may have been previously paid by FHD to Petitioners. DONE AND ENTERED this 20th day of March, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1990. COPIES FURNISHED: Greg Long Quave-Long Farms P.O. Box 1074 Haines City, FL 33945 F.H. Dicks III F.H. Dicks IV P.O. Box 175 Barnwell, SC 29201 South Carolina Insurance Company 1501 Lady Street Columbia, SC 29201 Hon. Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32399-1550 Mallory Horne General Counsel 513 Mayo Building Tallahassee, FL 32399-0800 Ben Pridgeon, Chief Bureau of Licensing & Bond Department of Agriculture Lab Complex Tallahassee, FL 32399-1650
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
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 only factual issue in this case is whether the Superior Paving triple axle dump truck being driven by Norman Jones on February 13, 1990, on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, was being operated with its air axle up, resulting in its being over the maximum weight for its remaining tandem rear axle under Section 316.535, Florida Statutes (1989). However, this straightforward factual case also raises several legal and procedural questions, including: (1) whether the Division of Administrative Hearings has jurisdiction; (2) which agency is authorized to take final agency action in the case; (3) who are the actual parties in interest; (4) whether the parties have standing; and (5) which party bears the burden of proof.
Findings Of Fact On February 13, 1990, while traveling south on U.S. 41 in the vicinity of the Gardinier plant near Gibsonton, south of Tampa, Florida, Patty Fagan, a DOT Motor Carrier Compliance Officer, observed a Superior Paving, Inc., dump truck traveling north on U.S. 41 with a full load of rock. She decided to check the load and, as she began to slow, she saw a second Superior Paving dump truck, also heading north with a full load of rock. She testified that the second truck was riding with its air axle up, leaving only two tandem rear axles, along with the steering axle, to bear the weight of the load. Fagan continued a short distance to the south on U.S. 41 until she was able to turn around and pursue the trucks to the north. She passed the second truck between one and two miles from where she turned around and testified that the second truck still was traveling with its air axle up. Fagan pulled up behind the first truck where it had stopped in the left turn lane at the entrance of the Gardinier plant. She got out to check the first truck. Meanwhile, the second truck, driven by Norman B. Jones, pulled up behind Fagan's vehicle. According to Fagan, Jones' truck still had the air axle up. According to Jones, the air axle was down at all times that he was within sight of Fagan until he pulled into the left turn lane behind Fagan's car and, while she was talking to the driver of the first truck, raised the air axle in preparation for the left turn. It would be difficult for anyone, much less an experienced compliance officer like Fagan, to mistakenly think she saw Jones' truck riding with the air axle up. It is obvious and easy to see whether the air axle is up or down. Likewise, it was easy for Jones to determine whether the air axle was up or down. There is a switch and an air pressure gauge immediately to the right of the driver seat which registers 40 pounds of pressure when the air axle is down and zero when it is up. The factual issue resolves to a question of the relative credibility of Fagan and Jones. Fagan wrote in her report of the incident that Jones first admitted that he had been driving with his air axle up because it was malfunctioning. The report states that Jones told her the problem was noticed when he picked up his first load in Brooksville and that he planned to have the problem fixed after his third load. She wrote that she told him he should have had it fixed before he left the yard with the first load. In fact, Jones only carried two loads that day, as usual, and never planned to carry three loads. He picked up both loads in Center Hill, Florida, about 60 miles northeast of Brooksville, and drove to Gardinier via I-75, also to the east of Brooksville, never going anywhere near Brooksville. Jones denied having made the statements the report attributes to him and stated that he had no reason to mention Brooksville or an alleged third load in the course of his conversation with Fagan. Fagan also wrote in her report that Jones changed his story later in the conversation and claimed that the air axle worked but was slow. Fagan said her response was that the air axle should have been down by the time she passed him for the second time, after she had turned around to head north on U.S. 41. Jones also denied that he ever said the air axle was slow. He testified that the air pressure system was worked on just two weeks before the incident and that it was in perfect operating condition. Neither party adduced any documentary evidence or testimony of third persons to establish whether air pressure system repairs were done on the truck or, if so, when they were done or what the problem was. Jones testified that his last load out Brooksville was "about six months ago." It is not clear whether he meant six months before the incident or six months before the hearing, which would have put it about the time of the incident, and also about the time work was done on the air pressure system. The evidence suggests the possibility that an air pressure problem arose while Jones was carrying a load out of Brooksville and that he had mentioned this to Fagan. In response to questioning by counsel for the DOT, Jones first stated that it is common to have problems with the air axle and that he has had trouble with the air axle on the same truck he was driving on February 13, 1990. In his next breath, he stated that he has had no trouble with the air axle on the truck but said he did have the governor on the air pressure system replaced "about a year and a half ago." (Again, his testimony was not clear whether he meant a year and a half before the incident or before the hearing.) He also again admitted that about two weeks before the incident, the air pressure lines and valves were replaced, and the air axle line was reattached to the new valve. According to Fagan, after checking the first truck, she went back to Jones' truck, asked Jones for his load ticket and, while he was looking for it in the cab, did a routine check by feeling the tires on the air axle and on the front tandem axle on the driver side. She testified that the tire on the air axle was cooler. Jones denies that Fagan ever touched or even got close to the tandem axle. Jones testified that he standing on the step to the cab when Fagan walked up and asked to see the his load ticket and that he just reached in, grabbed it off the dashboard and handed it to her. He testified that he then stepped to the ground and stood between Fagan and the rear axles and that she never walked past him. Later in testimony, Fagan testified that she might have asked Jones for the vehicle registration so that she could check the registered gross weight of the vehicle, and that Jones was looking for it in the cab while she was touching the vehicle tires. But Jones countered that Fagan did not ask for the vehicle registration until later, when they were at the weigh station to which Fagan had Jones drive. Jones testified that the air axle was down all the way from Center Hill except for just two times on each load when he raised it for purposes of negotiating tight turns, as permitted by the DOT's nonrule policy designed to reduce road and truck wear and tear: once when he turned onto U.S. 41; and a second time after he entered the left turn lane at the entrance of the Gardinier plant and stopped behind Fagan's car, while Fagan was talking to the driver of the first truck. However, Jones' description of his route from Center Hill to Gardinier included several other turns that would seem to have been just as tight as the two he says were the only times he raised his air axle. As Jones pointed out, if the rest of his testimony is true, even if the air axle was up the entire time from when he turned onto U.S 41 until he was stopped at the entrance to the Gardinier plant, the air axle tires still would have been hot to the touch. Conversely, if Fagan's testimony that the air axle tire was cool to the touch is true, then the air axle probably was up for most, if not all, of the trip from Center Hill. No statement was taken, or testimony elicited, from the driver of the other company truck to shed light on this factual dispute. Despite the difficulties presented by the evidence in this case, it is found that the DOT has proven by a preponderance of the evidence that Jones was operating the company truck he was driving on February 13, 1990, with the air axle up at least for a mile or two along U.S. 41. After their conversation in the left turn lane at the Gardinier plant entrance, Fagan required Jones to drive to a weigh station. (It angered Jones that this weigh station was five miles out of Jones' way. Jones did not understand why the truck could not have been weighed at the Gardinier plant.) The scale showed that 52,540 pounds of weight was being supported by the rear tandem axles of the truck. After weighing the truck, Fagan issued a citation and $387 fine to Superior Paving, Inc. The company paid the fine and deducted it from Jones' salary. The company never challenged the fine, and there is no evidence in the record that the company authorized Jones to challenge it on the company's behalf. Jones reqested that the Commercial Motor Vehicle Review Board drop or the fine reduce, which it declined to do.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commercial Motor Vehicle Review Board enter a final order upholding the $387 fine it assessed against Superior Paving, Inc., in this case. RECOMMENDED this 24th day of September, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1990.
