Findings Of Fact At all times pertinent to the issues herein, the Florida Department of Transportation 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. On November 14, 1991, Officer Joseph Borras stopped a 1985 Chevrolet truck, owned by the Respondent, LaCroix, on State Road 702 in Palm Beach County, for a routine inspection. Officer Borras requested the driver to produce his driver's license and the registration slip for the vehicle. This registration slip, which was to expire on December 31, 1991, reflected the weight/length of the vehicle as 7860 pounds and the gross vehicle weight/load, (GVW/LOD) as 7860 pounds also. Since the GWV/LOD weight, (that prescribed by statute for use in these situations) was 7860 pounds, the weight used as legal weight for assessing penalty was 7,999 pounds. Officer Borras then weighed the vehicle at the scene utilizing a set of recently calibrated Department-owned scales, using the standard weight procedures. This weighing of Respondent's vehicle at that time showed it to weigh, loaded, 12,800 pounds. When the 7,999 pound maximum legal weight was subtracted from the actual weight, Respondent's truck was seen to be 4,801 pounds overweight. That excess, taxed at 5 per pound, resulted in a civil penalty of $240.05. This sum was paid by the Respondent by check at the scene. Officer Borras, who was described by the Respondent as being very polite and cooperative at all times, listened to the Respondent's protestations to the effect that the GVW/LOD figure on the registration slip was obviously in error since it was the same as the empty weight of the vehicle, but had no options in the matter. He is mandated to go by the GVW/LOD figure which appears on the registration slip. It is the responsibility of the vehicle's owner to insure that the GVW/LOD figure which appears on the registration slip is correct. Here, Respondent failed to do this, effecting re-registration of the vehicle by mail on December 31, 1990. The registration slip for the prior year, it is noted, also reflected 7,860 pounds as the GVW/LOD. In 1989 it was 10,500 pounds with a weight/length of 7,860 pounds. In 1992, both weight/length and GVW/LOD limits for this same truck were raised to 14,999 pounds. Clearly, the weight/length figure is in error on that form as well. Mr. LaCroix, after the truck was cited and released, proceeded to the city dump, his intended destination, where, prior to dumping, his vehicle was weighed to determine the dump charge. No evidence was produced on the issue of the reliability of those scales. They reflected, however, a loaded vehicle weight of 11,940 pounds, and an empty weight of 8,000 pounds. Because of the unknown reliability of the dump scales and the certified accuracy of the Department's portable scales, the weight determined by Officer Borras is accepted as correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered imposing a civil fine of $240.05 on the Respondent, LaCroix Construction Company, Inc. RECOMMENDED this 20th day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1992. Vernon L. Whittier Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. - 58 Tallahassee, Florida 32399-0458 Ronald C. LaCroix President LaCroix Construction Company, Inc. 5900 Biscayne Drive Lake Worth, Florida 33463 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Bldg. Tallahassee, Florida 32399-0458
The Issue Should Respondent be required to pay Petitioner Twenty-Five Hundred dollars ($2,500.00), as a civil penalty for causing or permitting an out-of-service driver to operate a commercial motor vehicle (vehicle)?
Findings Of Fact Bryant Gay is a Motor Vehicle Compliance Officer who works for Petitioner. He was on duty on March 6, 1998. On that date, consistent with his employment, he stopped a commercial motor vehicle owned by Respondent and operated by Danny Holton. The stop was made in Gadsden County, Florida, on U.S. 90. The time of the stop was approximately 5:00 p.m. The basis for this stop was the suspicion that there was a violation of the weight axle law, premised upon Officer Gay's observation of the truck tires and springs. Once the stop was made the truck was weighed and was found to be of legal weight. But a check of Mr. Holton's driver's license revealed that the license did not carry the proper endorsements to operate a tank vehicle (such as Respondent's) of a capacity of more than one thousand gallons. As a consequence, Mr. Holton was cited for operating the vehicle without the proper driver's license and was fined one- hundred dollars ($100.00), pursuant to citation. Officer Gay also advised Mr. Holton that Mr. Holton was being placed out-of-service. After placing Mr. Holton out-of-service, Dan Strauss, the son of Fred Strauss, who is the owner and president of Respondent, was contacted. At that time Dan Strauss was serving as the acting representative of the Respondent in Fred Strauss' absence. Dan Strauss came to the scene of the stop and paid the $100.00 civil penalty for Mr. Holton's violation of the driver's license requirement that had been cited. Dan Strauss also brought a second driver to drive the subject vehicle back to Respondent's business premises. The second driver was allowed to return the subject vehicle based upon Officer Gay's belief that the second driver had the necessary license endorsements to operate the vehicle. Nothing in the conversation held between Officer Gay and Dan Strauss, at the point in time when the $100.00 civil penalty was paid, and the truck placed in the custody of the second driver, could reasonably be interpreted by Dan Strauss to allow Mr. Holton to continue to operate the subject vehicle before obtaining appropriate license endorsements. Nor did the conversation create a reason to believe that such an operation by Mr. Holton, if discovered by Petitioner's officer, would again be met with a further citation not to exceed $100.00. Nonetheless, Dan Strauss made the business judgment, that a customer, who was in immediate need of assistance to deal with a failed septic system, should not be ignored, even in the circumstance where Mr. Holton would be called upon to drive the subject vehicle to provide the service. Thus, Dan Strauss, having been told by Officer Gay that Mr. Holton was out-of-service to operate the subject vehicle, dispatched Mr. Holton to provide the service to the customer. At around 6:30 p.m., on March 6, 1998, Officer Gay saw Mr. Holton pulling the subject vehicle onto U.S. 27, in Gadsden County, Florida, and stopped the vehicle again. On this occasion, Officer Gay imposed a further citation in the amount of a civil penalty of twenty-five hundred dollars ($2,500.00), against Respondent, for permitting Mr. Holton to operate the subject vehicle when Mr. Holton had been declared out-of-service. When contacted about the additional citation, Dan Strauss told Officer Gay that he understood that Mr. Holton had been placed out-of-service as a driver of the subject vehicle; however, Dan Strauss told Officer Gay, that he, Dan Strauss, had assumed that if Mr. Holton was caught operating the vehicle it would only lead to another $100.00 civil penalty. No facts presented at hearing mitigate the twenty-five hundred dollar ($2,500.00) civil penalty for allowing an out-of- service driver to operate Respondent's vehicle.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes a twenty-five hundred dollar ($2,500.00) civil penalty against Respondent. DONE AND ENTERED this 21st day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1998. COPIES FURNISHED: Kelly A. Bennett, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Fred Strauss Talquin Septic Tank Post Office Box 559 Midway, Florida 32343 Thomas F. Barry, Secretary Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact At all times pertinent to the issues herein, the Department of Transportation was the state agency responsible foe enforcing the statutes involving commercial carrier and truck vehicle weight 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. On January 6, 1992, Officer Borras stopped the Respondent's 1981 White truck, which was proceeding northbound on Haverhill Road in West Palm Beach, for a routine weight and safety check. Using a set of portable scales which are calibrated by the Florida Department of Agriculture's Division of Weights and Measures every 6 months, and following the Department's routine procedure of weighing at each axle and combining the two figures, Borras determined the Gross Vehicle Weight/load of the truck was 27,800 pounds. The maximum legal weight of the vehicle in issue, including the 10% tolerance, was 25,999 pounds. Therefore, according to the Department's scales, Respondent's vehicle was overweight by 1,801 pounds. Applying the statutory penalty of 5 per pound of overweight, resulted in Respondent being assessed a total penalty of $90.05 for this alleged violation. Since the Respondent's driver was driving with an expired driver's license, Mr. Rice was called to the scene to remove the vehicle. Mrs. Rice, as Secretary of the corporation, was required to produce the $90.05 in cash even though Department procedures provide for payment of a penalty by company or certified check. The Department's scales are supposed to be calibrated for accuracy every 6 months. The scales used by Officer Borras had last been calibrated on July 16, 1991, almost 6 months previously, and were due for re-calibration in January, 1992. In the experience of Lt. Thomas Carnicella, also of the Department's Office of Motor Carrier Compliance, the portable scales are considered to be possibly off to some degree. For that reason, the 10% tolerance is added to the authorized vehicle weight. Immediately after the citation was issued and the penalty paid, the vehicle was released to Mr. Rice who drove it, loaded with roofing waste, to the Palm Beach County dump where it was again weighted, both with full load and then empty after dumping, to determine the amount of dumping fee to be assessed. According to the County's in-ground permanent scales, which reportedly had been calibrated 3 days previously, Respondent's loaded vehicle was weighed at 24,280 pounds, or 1,719 pounds under the legal weight of 25, 999 pounds. On a prior occasion, Respondent's vehicle was also cited by the Department for being overweight, as here, and a penalty assessed. At that time, the dump scales and the Department's portable scales read almost the same. For that reason, Respondent did not protest the action and assessment. In this case, however, the discrepancy was considerable and because of that fact and the fact the citation indicated, incorrectly, that the truck was green, the protest was filed. Officer Borras explained the color discrepancy as having been the result of his confusion due to several vehicles being stopped at once, one of which was green. There is no doubt in his mind, however, that the Respondent's vehicle was the one cited for overweight and it is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case setting aside the civil penalty in the amount of $90.05 assessed against A. Rice Roofing, Inc., and directing reimbursement in that amount. RECOMMENDED this 22nd day of July, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1992. Vernon L. Whittier, Jr. Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 John T. Rice A. Rice Roofing, Inc. 2458 Oklahoma Street Tallahassee, Florida 33406 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue in this case is whether the Petitioner, A.L.S.S., Inc. (Petitioner), is entitled to a refund in the amount of $3,261.47, for sales tax paid on the purchase of a new automobile.
Findings Of Fact The Respondent is the state agency charged with the responsibility of collecting sales and use tax owed to the State of Florida. See § 213.05, Fla. Stat. (2006). At all times material to the allegations of this case, the Petitioner was a registered export dealer. The Petitioner routinely purchases new motor vehicles for export to foreign buyers. In this case, the Petitioner purchased a new motor vehicle and subsequently exported it to a buyer in Brazil. More specifically, on or about May 24, 2004, the Petitioner purchased a new 2004 Hummer from Williamson Cadillac- Hummer in Miami, Florida. At the time of the purchase, the Petitioner paid the sales tax associated with the purchase of the vehicle. The total sales tax paid was $3,261.47. The sale of the vehicle resulted in the Florida registration of the vehicle and issuance of a Florida title in the name of the Petitioner. From the automobile dealership the subject vehicle was loaded on a flatbed wrecker and transported to a warehouse at or near the Port of Miami. In anticipation of its shipment to Brazil, the vehicle was drained and prepared for exportation in accordance with applicable laws and regulations. The Petitioner never drove the vehicle on the streets of Miami-Dade County and it was not insured. It is undisputed that the subject vehicle was exported to an individual in Brazil. Thereafter, the Petitioner sought a refund of the sales tax paid on the subject vehicle. The Petitioner contacted the Department to seek the refund and maintains that a sales tax was inappropriate in this case as the purchased item was bought for exportation. The Department offered to refund the sales tax upon receipt of an assignment of rights from the new vehicle dealer (Williamson Cadillac-Hummer). When the Petitioner contacted Williamson Cadillac-Hummer for assistance in obtaining the refund, the automobile dealer refused to aide the Petitioner. Williamson Cadillac-Hummer is precluded by its contractual agreement with General Motors from making sales for exportation. The Petitioner knew this at the time of the purchase of the new Hummer. Under its contractual agreement, Williamson Cadillac-Hummer may not directly or indirectly sell new motor vehicles for export. As the transaction was deemed a new car sale to the Petitioner (with the Florida title of the vehicle being put in the Petitioner’s name), the Department declined to refund the sales tax even though the vehicle was in fact exported to Brazil. It is the Department’s position that a taxable transaction occurred when the new motor vehicle was sold and registered in this state. In this case, the transaction could not have occurred (per the dealer’s agreement with General Motors) as a new motor vehicle sale for export.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a Final Order denying the refund sought by Petitioner. DONE AND ENTERED this 24th day of August, 2007, in Tallahassee, Leon County, Florida. S J. D. Parrish 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 24th day of August, 2007. COPIES FURNISHED: Darlot A. Veloso, Jr., President A.L.S.S., Inc. 995 Northwest 72nd Street Miami, Florida 33150 Warren J. Bird, Esquire Assistant Attorney General Office of the Attorney General Revenue Litigation Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Bruce Hoffmann, General Counsel Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Tallahassee, Florida 32399-0100 James Zingale, Executive Director Department of Revenue The Carlton Building, Room 104 501 South Calhoun Street Tallahassee, Florida 32399-0100
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
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The Department is the state agency which has the authority to enforce the statutory weight limit restrictions for vehicles traveling on the highways in the state and to impose penalties for violations of the restrictions. Sections 316.640, .535, and .545, Florida Statutes. On January 30, 1996, Officer Daniel Starling of the Department's Motor Carrier Compliance office, observed Reinaldo Gutierrez operating a commercial motor vehicle on State Road 80 in Palm Beach County, Florida. The vehicle appeared to Officer Starling to be overweight, and he stopped the vehicle and weighed it on the portable scales issued to him by the Department. These scales are inspected and certified as accurate twice a year by the Florida Department of Agriculture. Officer Starling weighed the vehicle in accordance with the training he had received from the Department. He determined that the vehicle's total weight was 81,500 pounds. Mr. Gutierrez's vehicle was a tractor/trailer combination carrying a load of sand; its length was 40 feet between its first and last axles. The maximum weight allowable by statute for this vehicle is 73,271 pounds. Officer Starling calculated that Mr. Gutierrez's vehicle weighed 8,226 pounds more than the 73,271-pound statutory limit, and he issued Load Report Citation number 119441L, assessing a penalty of $.05 cents per pound of excess weight. The resulting penalty, as calculated by Officer Starling, was $411.45, and Mr. Gutierrez paid this penalty in cash on January 30, 1996. Mr. Gutierrez does not dispute that his vehicle was overweight on January 30, 1996, but he contends that his vehicle was only 3,009 pounds overweight. He bases this contention on the load ticket he received on January 30, 1996, when he left the premises of GKK Corporation, the company for which he was hauling on that day. Although this load ticket showed a total weight of 76,280 pounds, Mr. Gutierrez did not produce evidence that the weight stated on the ticket was reliable. Furthermore, Mr. Gutierrez did not produce evidence that the scales used by Officer Starling were inaccurate or that the procedures he used in weighing the vehicle were improper. The evidence is clear and convincing that, on January 30, 1996, Mr. Gutierrez was operating a commercial vehicle on Florida's public highways whose weight exceeded the statutory weight limit of 73,271 pounds by 8,226 pounds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order finding that Reinaldo Gutierrez violated section 316.545(3), Florida Statutes, in the amount of 8,229 pounds and that Reinaldo Gutierrez is not entitled to a refund of the $411.45 penalty assessed against him. DONE AND ENTERED this 31st day of October, 1996, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1996. COPIES FURNISHED: Murray M. Wadsworth, Jr. Assistant General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Reinaldo Gutierrez 1360 South Main Street Belle Glade, Florida 33430 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
