The Issue The issue in this case is whether the Respondent correctly assessed a fuel use tax or civil penalty against Petitioner for violations of Sections 207.004, and 316.545, Florida Statutes, and Chapter 320, Florida Statutes, for operating a commercial vehicle on a highway in the State of Florida without vehicle registration and fuel tax registration to operate in the state.
Findings Of Fact On June 1, 1991, a commercial vehicle, operated by Unruh Fab, Inc., was stopped on I-10 in Escambia County, Florida at a Department of Transportation weight station. The weight station is the last exit in Florida for westbound vehicles and is the first exit in Florida for eastbound vehicles. The vehicle was not displaying a fuel use tax device, as required by Section 207.004, Florida Statutes, for its interstate operations and was not registered to operate in the State of Florida as required by Chapter 320, Florida Statutes. The driver did not present any fuel use tax registration documentation or International Registration Plan (IRP) registration as an interstate apportioned vehicle.1/ The Department of Transportation Inspector issued a temporary fuel use permit and an I.R.P. trip permit to Respondent to allow the vehicle to proceed on its way. The total cost of the temporary permits was $75.00. The owner of the vehicle was assessed a $50.00 civil penalty for violation of Chapter 207, Florida Statutes. See, Section 316.545(4), Florida Statutes. Additionally, while the truck was at the weight station, the Department of Transportation Inspector weighed the vehicle. The truck weighed 42,920 pounds. Under Section 316.545, Florida Statutes, Petitioner's vehicle's weight could not exceed 35,000 pounds. Petitioner's vehicle exceeded the 35,000 pound legal weight by 7,920 pounds. A penalty of 5 cents a pound was assessed for each pound over the legal weight resulting in a penalty of $396.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finding that the fee and penalty totaling $521.00 was correctly assessed Unrah Fab, Inc., by the Department of Transportation, under provisions of Sections 207.004 and 316.545, Florida Statutes, and Chapter 320, Florida Statutes. DONE and ENTERED this 1st day of June, 1992, in Tallahassee, 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 1st day of June, 1992.
The Issue Whether or not the overweight fine and fee for an International Registration Plan (IRP) Trip Permit in the total amount of $1,700.00 assessed Brandywine Auto Sales, Inc. by the Department of Transportation was correct under the provisions of Sections 316.545 and 320.0715 F.S.
Findings Of Fact On March 17, 1990 Officer David Spencer of the Department of Transportation's Weights Enforcement Division stopped a 1986 GMC "lowboy" trailer at the weight station on SR 9 (I-95) in Yulee, Nassau County, Florida. The vehicle had been proceeding north in the northbound lanes approximately one mile before entering Georgia. When stopped, the GMC trailer was loaded with a Warner & Swasey grade- all, which is heavy machinery, an earth mover. When stopped, the vehicle displayed a Maryland "dealer" tag on the window, accompanied by a State of Maryland registration certificate for Brandywine Auto Sales, Inc., as a dealer. When weighed, the vehicle/load weighed in at 68,400 pounds. The Respondent was allowed 35,000 pounds as a legal weight pursuant to Section 316.545(2)(b) F.S., but the agency assessed five cents per pound of excess weight (68,400 - 35,000 = 33,400 pounds), totalling $1,670.00. The fine, plus a $30.00 statutory fee for an IRP Trip Permit and Temporary Fuel Use Permit was paid to the Department of Transportation (DOT) via Western Union, and the vehicle was issued an IRP Trip Permit and Temporary Fuel Use Permit so that it could complete its trip. The fine/citation was protested by the Respondent, Brandywine Companies, which purports to be a parent company of Brandywine Auto Sales, Inc. Brandywine Auto Sales, Inc. is the holder of the Maryland dealer tag. The protest was twice denied by the DOT Commercial Vehicle Review Board before the dispute was referred to the Division of Administrative Hearings. Jack Pelham is Bureau Chief of the Division of Motor Vehicles of the Florida Department of Highway Safety and Motor Vehicles. In his official capacity, Mr. Pelham is responsible, in part, for oversight of motor vehicle registration in the state of Florida. According to Mr. Pelham's testimony, his agency considers a dealer tag to be sufficient to permit the hauling of automobiles and trucks, but insufficient to authorize hauling heavy equipment such as a grade-all, as was the case here. Based on his agency's interpretation of the reciprocity provisions of Chapter 320 F.S., Mr. Pelham also testified that the Division of Motor Vehicles would still consider Respondent's Maryland dealer tag used for hauling the grade-all in this case to be sufficient compliance with Florida law so as to avoid a fine if there were any competent substantial evidence that Maryland, the state which issued the dealer tag, used its dealer tags to permit the hauling of heavy machinery within its own borders. There was no affirmative demonstration that Maryland's dealer tags permit such heavy duty hauling, and all hearsay evidence admissible for consideration pursuant to Section 120.58(1) F.S. suggests contrariwise.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commercial Vehicle Review Board of the Department of Transportation enter a final order ratifying the correctness of the imposition of the $1,700.00 fine/fee assessed Brandywine Auto Sales, Inc. DONE and ENTERED this 20th day of August, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 20th day of August, 1991. APPENDIX The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 5 is rejected as unintelligible. 1-4 and 6-7 are accepted as modified. Respondent's PFOF: None filed COPIES FURNISHED: Rush M. Cox, Jr., Controller Brandywine Companies Routes 301 and 381, Box 68 Brandywine, MD 20613 Charles G. Gardner, Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Case No. 91-3505 APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3505
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent owned a commercial vehicle identified as a 1983 KW, VIN:IXKKD28X3DJ298929 (vehicle) which was operated by Trinity Trucking of Tampa, Florida. On August 7, 1990 the Respondent's vehicle while traveling on S.R. 5 in Monroe County, Florida was stopped and weighed by the Department. The total weight of the vehicle was 79,440 pounds consisting of 10,380 pounds on the steering axle, 35,900 pounds on drive tandem and 33,160 pounds on rear tandem. A Load Report and Field Receipt was completed and indicated the legal weight to be 35,000 pounds. This is the legal weight established for a commercial vehicle by Section 316.545(2)(b), Florida Statutes when that vehicle has an expired registration. The Respondent's Florida International Registration Plan (IRP) Temporary Operational Permit No. 061084 had expired on August 3, 1990, and Respondent had not obtained another Florida IRP Temporary Operational Permit or a current registration for the vehicle on August 7, 1990 when the vehicle was stopped and weighed. Using the "no tag" tax class weight of 79,440 pounds and subtracting the legal weight of 35,000 pounds as established by statute the vehicle was 44,440 pounds overweight. The Department assessed the Respondent a penalty of $0.05 per pound for each pound the vehicle was overweight which resulted in a total penalty assessed the Respondent of $2,222.00. After the Respondent purchased a valid tag for the vehicle and paid the penalty the vehicle was released. Respondent applied for registration in the Florida IRP in accordance with Section 320.0715, Florida Statutes, and was issued a 60-day Temporary Operational Permit in accordance with Section 320.0715(3), Florida Statutes, on June 4, 1990 with an expiration date of August 3, 1990. Sometime around June 28, 1990 Respondent was advised by the Department of Highway Safety and Motor Vehicles (DHSMV) that additional information was needed in order to further process his application for registration in the Florida IRP. Sometime around the week of July 9, 1990 Respondent mailed the requested information to IRP, Motor Carrier Service. DHSMV, however, the letter was misdirected to the Internal Revenue Service (IRS), possibly the U.S. Postal Service confused IRP with IRS, but, in any event, the information was returned to the Respondent in October 1990 by IRS. By this time, the Respondent had purchased a valid Florida tag and decided not to pursue registration of this vehicle in the Florida IRP. Respondent admitted that he was aware that the temporary operational permit for the vehicle expired on August 3, 1990 even though he was not personally operating the vehicle. Respondent also admitted that he made no inquiry to the DHSMV as to the status of his application for registration and did not request any extension of his temporary operational permit before the permit expired or before the vehicle was found to be overweight on August 7, 1990. It was only after the vehicle was found to be overweight due to the expired permit that Respondent checked with DHSMV and was advised that the requested information had not been received. There was no evidence that it was the policy of the Department to disregard the provision of Section 316.545(2)(b), Florida Statutes, establishing a legal weight of 35,000 pounds for a vehicle with an expired registration when the DHSMV had an application on file for registration in the Florida IRP which was being processed by DHSMV. On August 7, 1990 the Respondent's vehicle was 44,440 pounds overweight when it was stopped and weighed in Monroe County, Florida on S.R. 5, and the calculation of the penalty ($0.05 x 44,440 pounds = $2,222.00) 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 his request for refund of the penalty. DONE and ENTERED this 21st 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 21st day of October, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-4945 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in substance as modified in Findings of Fact 2, 3, 4 and 5. Adopted in substance as modified in Findings of Fact 6, 7 and 8. Adopted in substance as modified in Finding of Fact 10. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent waived the filing of proposed findings of fact and conclusions of law. Copies furnished to: Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458 Glenn E. Porter 5213 Fourth Street Bradenton, FL 34203 Ben G. Watts, Secretary Department of Transportation ATTN: Eleanor F. Turner, M.S. 58 Haydon Burns Building 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 Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess penalties of $4,101 pursuant to Section 316.545, Florida Statutes, regulating operation of commercial vehicles on a highway in the State of Florida?
Findings Of Fact On April 3, 1992, Beverly Griffin inspected and weighed two commercial vehicles owned and operated by the Respondent at the Sneads, Florida weigh station. The drivers produced the vehicles' Wisconsin apportioned registration, but the IRP permits and trip tickets were expired. The vehicles were weighed. One weighed 76,000 pounds, and the other weighed 76,020 pounds. The Respondent admitted the violation; however, the Respondent's representative indicated in his plea of mitigation that the company had obtained required permits and brought its equipment into the state on the trucks; however, it had taken longer than expected to complete the work with the machinery the trucks were carrying, and the permits had expired before the trucks and equipment could leave the state. The Department levied a fined in the amount of $4,101, at 5 cents/ pound for the overweight trucks plus $80 for new trip tickets, $90 for temporary fuel use permits, and $100 penalty for not having current fuel use permits. The Respondent paid the penalties. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finalizing assessment of the $4,351 in penalties against the Respondent pursuant to Section 316.545, Florida Statutes. DONE and ENTERED this 17th day of November, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Gary Pomeroy, Vice President The Big Red Machinery Movers, Inc. Post Office Box 274 Butler, WI 53007 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess a penalty of $1,250 pursuant to Section 316.545, Florida Statutes, regulating operation of a commercial vehicle on a highway in the State of Florida?
Findings Of Fact On June 27, 1991, Sergeant Tommy Jackson, observed a dump truck traveling eastward on 65C in Gadsden County, Florida. The Sergeant stopped the truck which did not have a tag. The driver of the truck, which did not have a name on it, was asked for the registration. The driver could not produce the registration. Sergeant Jackson called Officer Bennie Lee York, Jr., to come assist him in weighing the dump truck on portable scales. The vehicle weighed 60,000 pounds. The vehicle's serial number was checked through the Florida Division of Motor Vehicle's computer which determined the vehicle had no Florida tag or registration. Sergeant Jackson and Officer York went to the job site to which the truck was bound to verify the tag and registration of the vehicle. A Georgia registration and incorrect tag was presented. Sergeant Jackson went to his nearby home to call and verify the registration with the Georgia authorities in Atlanta, Georgia. Georgia reported no record of a tag for the vehicle in the State of Georgia. Sergeant Jackson returned to the job site and advised the job foreman that the State of Georgia did not report the vehicle as being registered in Georgia. About two hours later, Mr. Kinard of General Development brought a registration that matched the truck serial number. However, it was for a non-apportioned Georgia commercial tag. Officer York advised Mr. Kinard that an apportioned International Registration Plan tag or a Florida Commercial registration was required to operate a commercial vehicle in Florida. Officer York issued a load report to General Development assessing a penalty for being 25,000 pounds over the legal limit in the State of Florida of 35,000 for a commercial vehicle. The amount of the penalty was $1,250.00, or 5 cents for every pound of vehicle weight over 35,000 pounds. The Respondent admitted the violation, however, the Respondent's representative indicated in his plea for mitigation that the driver had taken the truck without authorization. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finalizing assessment of the $1,250.00 penalty assessed against General Development pursuant to Section 316.545, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February 1992. STEPHEN F. DEAN 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 26th day of February 1992. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Campbell, Secretary General Development Post Office Box 654 Quincy, Florida 32351 Ben G. Watts Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the demeanor of the witnesses, the following relevant facts are found: At all times pertinent to this proceeding, respondent T.A.S. Auto Sales held independent motor vehicle license #6VI-2652, with a licensed place of business at 117 1/2 Central Avenue in Brandon, Florida. The owner of T.A.S. Auto Sales is Donald Hunt. On May 1, 1985, the Division of Motor Vehicles issued license number 5VI-003620A to T.A.S. Auto Sales for a supplemental location at 312 East Brandon Boulevard in Brandon, Florida. The expiration date on this license was April 30, 1986. Donald Hunt leased the property at 312 East Brand on Boulevard and operated a retail car sales business there until approximately mid-June of 1985. He then decided to sell the business to Clarence W. Jenkins, and entered into an Assignment of Lease on July 1, 1985. According to Mr. Hunt, it was his intent to allow Mr. Jenkins to operate under the supplemental license of T.A.S. Auto Sales while Mr. Jenkins, doing business as Brandon Auto Brokers, obtained his own Florida Dealers License. However, according to Mr. Hunt, said arrangement was to terminate no later than July 28, 1985. A letter setting forth this agreement was received into evidence as respondent's Exhibit 4. From July 1, 1985, through July 28, 1985, Donald Hunt did supervise all title work performed through Brandon Auto Brokers and/or Mr. Jenkins. During July and early August, 1985, Brandon Auto Brokers secured a County occupational license, a Department of Revenue Certificate of Registration to collect sales and use taxes, a reassignment of telephone numbers, an insurance binder, a surety bond and membership in the Florida Independent Automobile Dealers Association. Signage indicating either Brandon Auto Brokers or "under new management" was also placed on the premises, but the date upon which such signage was erected was not established. Lois Jarvis, an inspector with the Division of Motor Vehicles, testified that she spoke on the telephone with Mr. Hunt and Mr. Jenkins on August 9, 1985, and thereafter mailed to Mr. Jenkins an application form for a dealer's license. It was Inspector Jarvis' understanding that Mr. Hunt was allowing Jenkins to operate under Mr. Hunt's supplemental license until such time as Jenkins obtained his own license. On September 4, 1985, she visited the supplemental lot to check on Mr. Jenkins' incomplete application. Her next visit with either Mr. Hunt or Mr. Jenkins occurred on September 23, 1985. At that time, while at Mr. Hunt's lot on Central Avenue, Mr. Hunt informed her that he had nothing more to do with the supplemental lot on Brand on Boulevard, and gave Ms. Jarvis his license for that location. Inspector Jarvis then went over to the supplemental lot and issued a Notice of Violation to Mr. Jenkins/Brandon Auto Brokers for offering, displaying for sale and selling motor vehicles without a license. On September 24, 1985, Ms. Jarvis requested the Department to cancel dealer license 5VI-3620A on the ground that "dealer closed lot and surrendered license." Mrs. Jarvis testified that she did not visit either the supplemental lot or the main lot in July or August of 1985. Her work records for July and August do not reflect a visit to either location. Mr. Hunt, and several witnesses testifying in respondent's behalf, testified that he told Inspector Jarvis in early July that he would have nothing more to do with the supplemental lot beyond July 28, 1985. It was their testimony that Mrs. Jarvis' response was that "there was no way Mr. Jenkins could be issued a license by July 28th, to which Mr. Hunt responded, "that's not my problem." Mr. Hunt admits that he did not specifically request Mrs. Jarvis to cancel his license for the supplemental lot as of July 28th, and that he did not deliver that license to Mrs. Jarvis until September 23, 1985. Based upon the demeanor and possible motives of the witnesses, as well as the documentary evidence received into evidence, it is concluded that Inspector Jarvis did not visit either the supplemental lot or the main lot for which T.A.S. held licenses in June, July or August of 1985. It is further found that Inspector Jarvis did not become aware that Mr. Hunt intended to cease all relationships with the supplemental lot until he delivered the license for those premises to her on September 23, 1985. By statute, an independent motor vehicle license period is from May 1 to April 30 of the following year. Licenses expire annually, "unless revoked or suspended prior to that date." Section 320.27(4), Florida Statutes. The Department has no rule, regulation, policy or established procedure for a licensee to surrender or cancel a license prior to the expiration date. On July 30, 1985, Bruce Reich purchased a 1980 Chevrolet Camero from the Jenkins at the supplemental lot. His checks were made payable to Brandon Auto Brokers. He did not think he was buying a car from T.A.S. or from Don Hunt. On or about September 30, 1985, Mr. Reich filed a Complaint Affidavit against Brandon Auto Brokers regarding this transaction. As of the date of the hearing, Mr. Reich had still not received title to the vehicle he purchased. On August 26, 1985, William S. Ryder purchased a 1981 Van from the Jenkins at the supplemental lot. On or about October 2, 1985, Mr. Ryder filed a Complaint Affidavit against T.A.S. Auto Sales on the ground that he had not received a clear title or plates for this vehicle. He had previously attempted to locate Mr. Jenkins, but was unable to find him.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent be DISMISSED. Respectfully submitted and entered this 31st day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0471 The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 8. Rejected; the evidence demonstrates that respondent intended that its responsibilities with regard to the supplemental lot would terminate on July 28, 1985. Respondent 1 - 3. Rejected in part as improper findings of fact. 4 - 9A. Rejected; not supported by competent, substantial evidence. 9H. Accepted, except that the evidence demonstrates that the Ryder complaint named T.A.S. Auto Sales as the dealer. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Michael N. Kavouklis, Esquire 419 West Platt Street Tampa, Florida 33606 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue The issues concern the question of whether the Petitioner is entitled to impose a $1,660.00 assessment against Respondent for operating a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On October 21, 1991, Respondent's commercial vehicle was inspected at the Petitioner's Yulee weight station located on Interstate 95 in Nassau County, Florida. It was discovered that the motor vehicle did not have a Florida registration. Furthermore, the South Carolina registration for the vehicle was not apportioned to allow operation in Florida. As a consequence a penalty was assessed for operating the commercial vehicle in Florida without benefit of an appropriate registration. The actual amount of penalty was $1,660.00 which is reflective of the gross weight of 68,200 pounds at a price of .05 per pound of the amount in excess of 35,000 pounds. Respondent paid the $1,660.00 fine plus the $30 single trip registration fee. This payment was rendered on the date that the commercial vehicle was stopped.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered finding that the $1,660.00 penalty was an appropriate amount to be assessed against the Respondent on October 21, 1991, as envisioned by Section 316.545(2)(b), Florida Statutes, and that the request for refund of that amount be rejected. DONE and ENTERED this 23rd day of June, 1992, in Tallahassee, Florida. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 GayCille Swisher Isley Iron & Metal Company 1691 Lost Mountain Road Powder Springs, GA 30073 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1992.
Findings Of Fact On June 6, 1991 a commercial vehicle owned by the Respondent was operating over a highway in the State of Florida. That highway is Interstate 75 in Hamilton County, Florida. An inspection was made by the Petitioner and it was revealed that the registration available with the vehicle did not pertain to the vehicle. A valid registration of a temporary or permanent nature which was associated with the vehicle was not presented at that time. There being no valid registration for the vehicle a fine in the amount of $1,746.00 was assessed in that the owner was charged $.05 per pound for the amount over 35,000 pounds, subtracted from the gross weight of 69,920 pounds. In explanation at hearing Henry Jernigan who owns Southern Salvage Company, Inc. admitted that the vehicle in question had left Respondent's facility with a Georgia tag that belonged to another truck owned by Respondent. Further Mr. Jernigan admitted that when the Florida officials stopped the truck in question it had the wrong tag displayed. The tag pertaining to another vehicle had been placed on the vehicle in question by mistake. Concerning the appropriate indication of registration on the subject truck, steps necessary to purchase a tag had been started in Colquitt County, Georgia on April 26, 1991. This was followed by money paid to the Georgia Department of Revenue on May 28, 1991 for the IRP which signifies permanent registration but the permanent tag was not received immediately. That is to say confirmation of that permanent registration by officials with the Georgia Department of Revenue had not been made when the vehicle was stopped. Meaning the Respondent had not received a copy of the permanent registration when the vehicle was stopped. The permanent registration was finally received by the Respondent sometime around June 20, 1991.
Recommendation Having considered the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered assessing a fine in the amount of $1,746.00 for this violation. DONE and ENTERED this 10th day of December, 1991, in Tallahassee, Florida. CHARLES C. ADAMS 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 10th day of December, 1991. APPENDIX The following discussion is given concerning the proposed facts of the Petitioner: Paragraph 1 is subordinate to facts found. Paragraph 2 in its first two sentences are hearsay, not available for fact finding. The third sentence is not necessary to the resolution of the dispute. The next sentences are subordinate to facts found. The last two sentences are hearsay and not available for fact finding. Copies furnished to: Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Henry Jernigan Southern Salvage Company, Inc. Route 2, Box 210 Lenox, GA 31637 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Daniel M. Kilbride , an Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's Motion to Relinquish Jurisdiction based on a Settlement Stipulation entered into between the parties, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly it is FOUND and ORDERED as follows: That Respondent shall pay an administrative fine in the amount of two hundred fifty dollars ($250.00) per count for a total of four thousand two hundred fifty dollars ($4,250.00). The fine shall be paid in four monthly payments. The first payment of $1,250.00 to be paid on or before April 16, 2010. The second payment of $1,000.00 to be paid on or before May 16, 2010. The third payment of $1,000.00 to be paid on or before June 16, 2010. The fourth Filed March 18, 2010 4:17 PM Division of Administrative Hearings. and final payment of $1,000.00 to be paid on or before July 16, 2010. All payments are to be made by returning a copy of the order with payment to: Department of Highway Safety and Motor Vehicles Office of the Hearing Officer Division of Motor Vehicles 2900 Apalachee Parkway, Room A308, MS-61 Tallahassee, Florida 32399-0600 If Respondent pays each installment of the amount specified in paragraph one above within the specified time the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay any installment as specified in paragraph one, on the day following the due date of the installment, Respondent's motor vehicle dealer license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. If, after suspension Respondent pays the past due installment before the due date of the next installment, its motor vehicle dealer license will immediately be reinstated without further penalties or sanctions. However, if Respondent fails to pay the past due installment by the due date of the next installment, the Department will revoke Respondent's motor vehicle dealer license. If the Department suspends or revokes Respondent's motor vehicle dealer license for non-payment as specified in paragraphs two and three said suspension or revocation shall be without recourse to the Respondent and Respondent hereby expressly waives any right to appeal or otherwise contest the suspension and revocation./ / DONE AND ORDERED this / gday of March 2010, at Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B439, MS-60 Tallahassee, Florida 32399-0600 Filed in the official records of the Division of Motor Vehicles this ay of March 2010. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rule 9.110, Rules of Appellate Procedure. CAF:jdc Copies furnished: Gary Konopka Regional Administrator Dealer License Section Riad I. Kantar, President World Shell, Inc. 7161 Augusto Boulevard Seminole, Florida 33777 FALR Post Office Box 385 Gainesville, Florida 32602
