The Issue Should Petitioner impose a fine on Respondent in the amount of $1,902.00 for operating an over-weight motor vehicle on a bridge with weight limitations?
Findings Of Fact On January 6, 1995, a truck owned by Martin Leasing was operating on State Road 520 in Orange and Brevard Counties, Florida. The driver was William Edward Bednar. The truck was approximately 70 feet long, with five axles. On that date, Officer Charles Hunter of the Motor Carrier Compliance Division of the Department of Transportation observed Mr. Bednar cross a low weight limit bridge leaving Orange County and entering Brevard County, Florida. The weight limit for the bridge was 30,000 pounds. Officer Hunter stopped the Martin Leasing vehicle and had it weighed on nearby scales that were certified. The truck weighed 68,040 pounds. For that reason, Petitioner cited Respondent, pursuant to Section 316.545(3), Florida Statutes. As a consequence, a monetary assessment was levied against Respondent in the amount of $1,902.00, which represents a penalty related to the 38,040 pounds overweight times $.05 per pound. Volume 3: Bridge Load Rating, Permitting and Posting Manual, Florida Department of Transportation, states, in pertinent part: Weight limits to be shown on the posting signs at a bridge site, shall represent the gross vehicular weight (GVW) in tons for a maximum of three truck types. However, no more than one or two truck symbols may be needed. A graphic depiction of the general weight limit sign is shown on the Roadway and Traffic Design Standard Index No. 17357. The three truck types are as follows: Single unit trucks. (SU) Combination trucks with a single trailer. (C) Combination trucks with two trailers or a single unit truck with one trailer. (ST5) The single unit truck case will be the lowest operating rating for two axle (SU2), three axle (SU3) and four axle (SU4) trucks. This single unit truck will be represented on the weight limit sign by a two axle single unit truck silhouette. The operating rating GVW may exceed the legal limit GVW of one or more truck types. In this case, these specific truck types would be excluded when establishing the lowest permissible operating rating. For example if the operating rating for the SU2 truck was 16,300 kg (18 tons) then the SU2 truck would not be considered for posting since the legal limit for the SU2 truck is 15,400 kg (15 tons). The combination truck with one trailer will be the lowest permissible operating rating for three axle (C3), four axle (C4) and five axle (C5) trucks. This combination truck will be represented on the weight limit sign by a three axle combination truck silhouette (one trailer). The operating rating GVW may exceed the legal limit GVW of one or more truck types. In this case, these specific truck types would be excluded when establishing the lowest per- missible operating rating. For example if the operating rating for the C3 truck was 26,300 kg (29 tons), then the C3 truck would not be considered for posting since the legal limit for the C3 truck is 25,400 kg (28 tons). The combination truck with two trailers or a straight truck with one trailer will be governed by the operating rating for the single unit truck with one trailer (ST5). This combination truck will be represented on the weight limit sign by a silhouette of a two axle single unit truck pulling a two axle trailer. Based upon the above-referenced manual, a combination truck with one trailer, such as the Martin Leasing truck, would be depicted on the posting signs for weight limits by a silhouette on the sign that shows a three axle combination truck with one trailer, whether the truck operating on the road has three axles, four axles, or five axles. Rule 14-15.010, Florida Administrative Code, adopts the Manual on Uniform Traffic Control Devices, published by the United States Department of Transportation, Federal Highway Administration, 1988 Edition. That manual prescribes the size and character of the weight limit signs posted by Petitioner. Included on the sign are the three silhouettes that are referred to in the Petitioner's Manual for Bridge Load Rating, Permitting and Posting. In particular, the federal sign depicts a silhouette for the combination truck with one trailer, which silhouette has three axles. In addition, Petitioner publishes a booklet through its Motor Carrier Compliance Office. That booklet is entitled: Florida Department of Transportation Trucking Manual. It is a handbook or guide for operating trucks in Florida. It refers to the low-limit roads and bridges in Florida and to the portrayal of those bridges on low-limit signs that have been described in the prior manuals. The trucking manual states: Low Limit Roads and Bridges Due to age, condition, or design, some roads and bridges in Florida cannot carry the load limits allowed in this manual. Signs detailing these lower limits have been posted on such roads and bridges. . . . The maximum allowable weight is listed, in tons, beside the silhouette for each of the 3 classes of vehicles. The SINGLE-UNIT TRUCK silhouette includes all straight trucks, cranes and other single- unit special mobile equipment regardless of the number of axles. The TRUCK TRACTOR SEMI-TRAILER silhouette includes all truck tractor combinations regard- less of the number of axles. The SINGLE-UNIT TRUCK WITH ONE TRAILER in- cludes all MAXI-CUBE and TANDEM TRAILER combin- ations regardless of the number of axles. Please watch carefully for all load limit signs and obey them. The trucking manual gives an example of a weight limit sign with the truck silhouettes, to include the combination truck with one trailer, described in the trucking manual as a truck tractor semi-trailer. Under that description the Martin Leasing truck would be a tractor semi-trailer. Again, the trucking manual refers to the silhouette for a combination truck with one trailer to regulate any truck tractor combination in that configuration, regardless of the number of axles. Notwithstanding Petitioner's intention to depict a combination truck and single trailer with three axles on its signs, to inform truckers operating that configuration, whatever numbers of axles are found on the operating truck, Respondent takes the view that the failure to depict a five-axle truck and single trailer combination means that Respondent need not comply with the posted weight limits. That is an unreasonable interpretation. Respondent, through its driver, erroneously takes the view that the weight limits for the bridge in question depicted by signs with silhouettes showing single-unit trucks limited to 22,000 pounds; combination trucks with a single trailer limited to 30,000 pounds; and combination trucks with two trailers or a straight truck with one trailer limited to 36,000 pounds would not place Respondent on notice that its 68,040-pound truck, which was a combination with one trailer, should not have crossed the bridge, whatever the number of axles. Adequate warning was provided to Mr. Bednar concerning the approach to the low weight limit bridge. A weight limit sign, including the aforementioned information, was located nine miles prior to the bridge. The nine-mile sign was located immediately before the junction of State Road 520 and State Road 528. Mr. Bednar could have exited on State Road 528. A weight limit sign indicating "weight limit restriction ahead" was located closer to the bridge. A weight limit sign depicting the information and describing the opportunity for last road exit from State Road 520, before entering the bridge, was provided. The last exit sign referred to the junction between State Road 520 and County Road 532. Mr. Bednar could have existed County Road 532. Another weight limit sign was found within two miles of the bridge. The bridge itself was posted with the weight limits that have been described.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which imposes a $1,902.00 assessment against Respondent. DONE AND ENTERED this 20th day of February, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3897 The following discussion is given concerning Petitioner's proposed findings of fact. Paragraphs 1-11 are subordinate to facts found. Paragraphs 12 and 13 are not necessary to the resolution of the dispute. COPIES FURNISHED: Murray M. Wadsworth, Jr. Assistant General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 Tommy Martin Post Office Box 624 Yulee, FL 32097 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450
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 Whether Petitioner properly imposed an administrative fine against the Respondent for allowing one of its vehicles to be operated in violation of a posted load limit.
Findings Of Fact On May 2, 1992, at approximately 7:00 a.m., Petitioner, by its inspection and compliance officer, Rebecca Stalnaker, stopped the Respondent's driver, Jeffrey Leo Speak (Speak) who was operating one of Respondent's vehicles on Lumsden Road in the City of Brandon, Hillsborough County, Florida. Lumsden Road in Brandon, where Respondent's vehicle was stopped, is a low load limit roadway and signs designating the roadway as such, were properly posted. The low load limit posting is relatively new in the area. Petitioner began issuing traffic citations to the vehicular traffic on Lumsden Road for violating the posted load limits during 1992. Petitioner's weight and safety officers began enforcing the posted limits after receiving numerous complaints from residents in the neighboring area around Lumsden Road about non-compliance with the posted weight limits. Petitioner issued a series of warnings to vehicular traffic during early 1992 for vehicles which were traversing the road weighing more than the posted load limits. Those motorists were warned that after April 30, 1992, administrative fines would be imposed against vehicles which exceeded the posted load limits. Speak was unaware that Lumsden Road was a low load limit roadway and he advised Petitioners agent, Rebecca Stalnaker, of his lack of knowledge. This was so, despite the fact that agent Stalnaker followed him past one of the posted load limit signs. There are alternate routes for vehicular traffic to travel in the area of Lumsden Road including a main thoroughfare one mile to the North, i.e., State Road 60. The posted and legal weight limit for Lumsden Road is 5 tons (10,000 pounds). Respondent's vehicle had a gross weight of 50,250 pounds or 40,250 pounds over the posted limit. As a result, agent Stalnaker imposed an administrative fine of .05 per pound for each pound that Respondent's vehicle exceeded the posted limit or $2,012.50. Agent Stalnaker weighed Respondent's vehicle alongside the roadway using authorized portable scales. She followed Petitioner's usual and approved procedures for weighing vehicles. During times material, the Board has considered and ruled on eleven cases similar to the instant case. Of the eleven cases, seven drivers/owners were afforded relief in the form of waiving all fines except the minimum of $500.00 for driving vehicles with loads that exceeded the posted limits. After April 30, 1992, the Board adopted a policy indicating that no relief would be given to vehicular traffic traversing the area of Lumsden Road as the "window of opportunity" had passed for vehicular traffic to be informed of the low load limit designation on Lumsden Road. The Board has discretion to waive, modify or cancel the imposition of administrative fines levied against vehicles for exceeding the posted load limits.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1,006.25. 1/ DONE and ENTERED this 13th day of January, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1993.
Findings Of Fact Petitioner was employed by Respondent from August 26, 1986 to November 6, 1986 as a millworker cutting wood for floor joists used in the manufacture of mobile homes. His employment was terminated by Respondent on November 6, 1986 due to his inability to keep up with production. Petitioner timely filed his request for hearing with the Florida Commission on Human Relations. Respondent is an employer within the terms of the Human Rights Act of 1977, Chapter 760, Florida Statutes, and manufactures mobile homes. Petitioner is handicapped by virtue of the amputation of his left arm above the elbow due to a motorcycle accident in 1977. During the approximately two and one-half month period that Petitioner was employed by Respondent, four mobile homes per day were being produced. However, Respondent determined in late October, 1986 to increase production to five mobile homes per day and implemented this increased level of production in November, after Petitioner was terminated. All employees are evaluated within thirty days of their employment by Respondent. Petitioner's thirty day evaluation was conducted on September 23, 1986. On a five point scale, with one being excellent and five being poor, Petitioner received a rating of four in productivity. This is a low average rating. Comments by his group leader on the evaluation form state that Petitioner "needs to get a system down in order to increase productivity." Petitioner was counsel led about the need to increase his productivity at the time of this evaluation. From September 23 to October 24, 1986 Petitioner's productivity did not improve. His group leader at the time he was terminated, Frederick W. Moulder, testified that it took Petitioner 3 1/2 hours to do a job which it took Moulder 1 1/2 to 3 hours to do. Moulder also helped Petitioner finish his work since Moulder regularly finished early and Petitioner never completed his work early, even though production at the time was four homes per day and had not yet been increased to five. On October 24, 1986 Petitioner's supervisor, Tim Powers, prepared a written warning notice which stated that Petitioner "needs to improve his speed to enable him to keep up with his production . . . ." Petitioner refused to sign this warning notice to acknowledge receipt, and instead stated to Powers that his production was fast enough. Petitioner was assigned to work with Charles Rogers on the last day of his employment to show Rogers how the machines he worked with operated. Rogers replaced Petitioner after his termination. There is no evidence that Petitioner ever asked for a reassignment due to production demands of his millworker position. To the contrary, Petitioner continues to feel that he was working fast enough and was meeting production that he felt was sufficient. In any event, there is no evidence that alternative positions were available. During October and November, 1986 Respondent terminated eleven employees for slow or insufficient production, in addition to Petitioner.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 23rd Day of November, 1987, in Tallahassee, Florida. DONALD D. CONN 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 November, 1987. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-3407 Rulings on Respondent's Proposed Findings of Fact: 1-3 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 1. Adopted in Finding of Fact 6. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 8-9 Adopted in Finding of Fact 8. 10-11 Rejected as irrelevant and unnecessary. 12 Adopted in Finding of Fact 4. 13-16 Adopted in Finding of Fact 7. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 1. COPIES FURNISHED: Joseph Scott Shepherd 108 Flores Way Auburndale, Florida 33823 Jeffrey W. Bell, Esquire 600 Peachtree At The Circle Building 1275 Peachtree Street, N.E. Atlanta, Georgia 30309 Donald A. Griffin Executive Director 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue in this case is whether the Hayes & Hayes Trucking triple axle dump truck being driven by Norman Williams on June 20, 1990, on U.S. 92 between 56th Street and Orient Road in Tampa, Florida, was being operated with its air axle up, resulting in its being over the maximum weight for its tandem rear axles, as well as for its steering axle, under Section 316.535, Florida Statutes (1989).
Findings Of Fact On June 20, 1990, Norman Williams was operating a dump truck owned by Hayes & Hayes Trucking on 56th Street in Tampa, Hillsborough County, Florida. The truck was equipped with a steering axle, tandem rear axles and a middle "mini-axle" that can be lowered to carry heavy loads. When required to carry heavy loads, the "mini-axle" can be raised only during turning but must be lowered upon completion of the turn. When Williams got to U.S. 92, he raised the "mini-axle" and made a right turn onto U.S. 92, headed east. He did not lower the "mini-axle" after the turn. While headed west on U.S. 92, about a hundred yards east of 56th Street, Rebecca Stalnaker, a DOT Motor Carrier Compliance Officer, observed the dump truck Williams was driving traveling east on U.S. 92 with its air axle up. She made a U-turn to check the load. After making her U-turn, Stalnaker followed the truck, which was traveling in the left lane of the eastbound traffic on U.S. 92, for approximately a mile. Three or four times, Stalnaker changed to the right lane to verify that the truck's air axle still was up. After following for about a mile, Stalnaker put on her blue light to get the driver of the truck to pull over and stop. For the first time, Williams saw Stalnaker in his side view mirror and, as he began to pull into the right lane, put his truck's air axle down. Williams pulled the truck off the right side of the road. When Stalnaker confronted Williams and accused him of driving with the air axle up, Williams replied that he thought it was permissible to drive with the air axle up in town when driving in traffic in streets having traffic signalization. Stalnaker required Williams to put the air axle back up and drive his truck to a weigh station. The scale showed that the front, steering axle of the truck was supporting 19,980 pounds and the rear, tandem axles of the truck were supporting 47,400 pounds. After weighing the truck, Stalnaker issued a citation and $181.50 fine to Hayes & Hayes Trucking. The company paid the fine and required Williams to reimburse the company. The company never challenged the fine, and there is no evidence in the record that the company authorized Williams to challenge it on the company's behalf. Williams requested that the Commercial Motor Vehicle Review Board drop the fine. The Review Board and the Department acquiesced in Williams' standing, but the Review Board declined to drop the fine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order upholding the $181.50 fine it assessed against Hayes & Hayes Trucking in this case. RECOMMENDED this 2nd day of October, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991.
The Issue The issue for consideration in this matter is whether the Respondent violated the weight limitations for truck traffic over a low limit bridge on SR 850 in Palm Beach County, Florida on November 12, 1991, and if so, what is the appropriate penalty.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was the state agency responsible for enforcing the state statutes involving commercial carrier weight compliance in this state which it does through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to cite drivers and owners of commercial vehicles which violate the load limits on the streets and highways of this state. On November 12, 1991, at approximately 2:30 PM, Officer Roy Neff stopped the Respondent's open board truck for crossing the low limit bridge located on State Road 850 in North Palm Beach, Florida, while apparently overloaded. The truck was carrying a load of drywall sheets and stucco. Officer Neff weighed the vehicle with the Department's portable scales he carried with him. These scales are calibrated for accuracy every 6 months. He utilized the standard Department weighing procedure which calls for a weight under each axle combined to give a total vehicle weight. This vehicle weighed 68,000 pounds loaded, according to this procedure used. Because this particular bridge was allowed no more than 26 tons, (52,000 pounds), of weight for a vehicle in this category, (non-trailer with 2 axles), Officer Neff cited the Respondent's driver for an overweight of 16,000 pounds. Since overweight is penalized at 5 per pound, the penalty assessed was $800.00. The approach to this bridge was clearly marked at several locations with signs indicating the maximum weight permitted for this bridge was 26 tons. These signs were located at sites which were far enough away from the bridge (1 mile and 1/2 mile) to give a driver ample opportunity to turn around or to take an alternate route to his destination on roads situated between the signs and the bridge. When the citation was issued here, the driver posted an acceptable bond and the vehicle was released. Respondent does not deny its vehicle as loaded exceeded the state's weight limitations for this bridge. However, it contends that the amount of overweight was less than that determined by officer Ness and it therefore overpaid the penalty by $252.30. Respondent bases this calculation on what it claims was the load on the truck at the time, multiplied by the weight per piece as provided by the manufacture of the product. In support of its claim, Respondent offered a handwritten, self-made list of weights purportedly taken from manufacturer furnished documents. These weights are then utilized in a computation of total load weight based on another handwritten list of materials, reportedly on the truck at the time, which was reconstructed from the delivery ticket for that trip approximately one week or so after the citation was issued. The weakness of this evidence is compounded by the fact that there is no weight in the "manufacturer's" list for the 30 sheets of 14 foot long drywall which Respondent claims weigh a total of 4,284 pounds. There is also no source for the 6,000 pounds of stucco. Presumably, the "75 stucco" relates to 75 bags at 80 pounds per bag. No doubt Respondent's protestations of overpayment are honestly made and made with good intentions. However, its evidence in support of its claim does not outweigh the evidence that the Department scales used to conduct the inspection here were calibrated for accuracy every 6 months. There is no evidence to indicate either that they were not accurate when used or that the weighing procedures followed were improper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore: RECOMMENDED that a Final Order be entered assessing a civil fine in the amount of $800.00 against the Respondent, Delta Building Supplies. RECOMMENDED this 20th day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street, MS - 58 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. Tallahassee, Florida 32399-0458 Tim Czencz Delta Building Supplies 12951 SW 124th Street Miami, Florida 33186 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 Building Tallahassee, Florida 32399-0458
Findings Of Fact Respondent Bard Opsahl is an employee of his father's corporation, Respondent John G. Opsahl, Inc. September 22, 1994, Respondent Opsahl was driving a truck of Respondent John G. Opsahl, Inc. He had just acquired a load of dirt from a pit and had turned north on Taylor Road from Jones Loop Road. On the east side of Taylor Road, immediately north of the Jones Loop Road intersection, there was a sign marked "Weight Limit." A sign beside the "Weight Limit" sign warned that a weight-limited bridge was ahead. The Weight Limit sign contained profiles of three trucks and three tractor-trailer combinations. Each of the profiles displayed a number of axles. Beside four of the profiles were numbers followed by "Ts," which indicates tons. The bottom profile was of a five-axle tractor-trailer. Next to it was a 22-ton limit. The next profile from the bottom was of a four-axle, cab-over- engine tractor-trailer, which bore an 18-ton weight limit. The next profile was of a three-axle tractor-trailer, which bore a 22-ton weight limit. The next profile was of a four-axle truck, which bore a 15-ton weight limit. The top two profiles were of a two-axle truck and a three-axle truck. What appeared to be a piece of wide, white tape ran between the numbers and the "T's" down the entire length of the sign. Beside the top two profiles, another piece of tape obscureed the numbers, so that they could not be read. Based on the Load Report Citation, Respondent Opsahl was driving a three-axle truck (i.e., without a trailer). The weight limit for this type of vehicle was one of the two that was obscured. There was no Weight Limit sign at the bridge itself on the day in question. Respondent Brad Opsahl drove his vehicle across the bridge on Taylor Road north of Jones Loop Road. There are two facts adverse to Respondents. First, the tape on the Weight Limit sign did not appear to invalidate all weight limits, especially in view of the sign next to it warning of a "bridge weight restriction ahead." In other words, Respondent Brad Opsahl should have understood that the bridge was a weight-limited bridge. Second, Respondents' truck weighed 59,800 pounds, or 30 tons, which exceeded the highest limit posted on the Weight Limit sign. Although Respondent Opsahl was a young, relatively inexperienced driver, it is inconceivable that he would think that a three-axle truck could better distribute a load than a five- axle tractor-trailer combination without a cab-over-engine. The limit for the latter vehicle, which was the highest visible limit, was 22 tons. Respondents have already paid the fine of $1290 cited in the citation.
Recommendation It is hereby RECOMMENDED that the Commercial Motor Vehicle Review Board enter a final order imposing a penalty against Respondents in the amount of $790 and refunding $500 of the $1290 already paid by Respondents. ENTERED on June 13, 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 June 13, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as subordinate. 4-5: adopted or adopted in substance. 6: rejected as recitation of evidence. 7: rejected as irrelevant. 8: rejected as recitation of evidence. 9-13: rejected as subordinate and recitation of evidence. Rulings on Respondent's Proposed Findings 1-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9: adopted or adopted in substance as to amount paid. The amount of the recommended refund is different. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 ATTN: Eleanor F. Turner, M.S. 58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Cindy S. Price Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399 John L. Polk John L. Polk, P.A. P.O. Box 1221 Punta Gorda, FL 33951-1221 Commercial Motor Vehicle Review Board 1815 Thomasville Road Tallahassee, FL 32303-5750
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
