The Issue Whether the fee and penalty totaling $95.00 assessed against Atlantic Gulf Marine Transport by the Florida Department of Transportation should be sustained.
Findings Of Fact Respondent, Atlantic Gulf Transport, operated a commercial vehicle on State Road 84 in Broward County, Florida, on April 11, 1990, when it was stopped by a Motor Carrier Compliance Officer (Compliance Officer) employed by Respondent. The subject vehicle was not displaying a fuel use tax device for its interstate operations as required by Section 207.004, Florida Statutes, and the driver did not present any fuel use tax registration documentation. The Compliance Officer issued a temporary fuel use permit as authorized by Section 207.004(4), Florida Statutes. The fee for the permit was $45.00. The Compliance Officer also assessed a civil penalty for the violation of Chapter 207, Florida Statutes, as authorized by Section 316.545(4), Florida Statutes. The amount of the civil penalty was $50.00. Petitioner established a prima facie case that the assessment of the fee and penalty were authorized by pertinent statute. Respondent made no appearance at the formal hearing and introduced no evidence to rebut this prima facie showing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which upholds the assessment of the subject fee and penalty. DONE AND ORDERED this 10th day of February, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of February, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Florida Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles T. O'Neil Atlantic Gulf Marine Transport P.O. Box 3304 Lantana, Florida 33462 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: ELEANOR F. TURNER, M.S. 58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
Findings Of Fact On March 22, 1977 during a routine inspection of various service stations in Vero Beach, a sample of No. 2 diesel fuel was taken from the pump at English Brothers Truck Stop. Upon analysis at the mobile laboratory the sample was found to be below the minimum flash point for No. 2 diesel fuel and the inspector returned to the station the same day and issued a stop sale notice. (Exhibit 3). Three additional samples were taken, and when analyzed they too were found to be below minimum flash point for this type fuel. Upon receipt of the stop sale notice the station manager notified Respondent. After the fuel had been analyzed at the state laboratory Respondent was notified that since the retail value of the contaminated fuel exceeded $1,000 it could pay $1,000 in lieu of having the fuel confiscated. Respondent owns the fuel at English Brothers Truck Stop until such time as the fuel is removed through the pump for sale. Upon receipt of the notice of the contaminated fuel, which was in one 4,000 gallon tank, Respondent immediately sent three employees to remove the contaminated fuel and clean the tank. Thereafter Respondent attempted to locate the source of the contamination but without success. Since the flash point was lower than allowed for diesel fuel the most likely source of contamination was gasoline which is a higher priced fuel than diesel. Standards used by the Petitioner in determining the required characteristics of fuels are those prescribed by the ASTM. Respondent distributes some 750,000 gallons of diesel fuel per month and this is the first report of contamination of its fuel in the eight and one half years Respondent has been in business.
The Issue Whether or not the Petitioner, Radiant Oil Company of Jacksonville, is responsible to pay $4,466.64, plus the penalty and interest currently due from a proposed assessment by the Respondent, State of Florida, Department of Revenue, Motor Fuel Tax Bureau, under the alleged authority of Chapter 206, Florida Statutes.
Findings Of Fact The Radiant Oil Company of Jacksonville is a dealer in special fuels within the meaning of Chapter 206, Florida Statutes. The Respondent, State of Florida, Department of Revenue, Motor Fuel Tax Bureau is responsible for the enforcement of the tax provisions found in Chapter 206, Florida Statutes. On October 6, 1977, the Respondent issued a notice of proposed assessment against the Petitioner claiming the amount of tax due to be $4,837.92. This notice of proposed assessment may be found as part of the Composite Exhibit 1 of the Respondent, admitted into evidence. There remains in dispute $4,466.64 together with a possible penalty and interest that would be assessed. This amount of disputed tax, penalty and interest pertains to transactions between the Petitioner and the Boam Company, one of its customers. Specifically, the Respondent is asserting a tax on the amount of 55,833 gallons of diesel fuel which was sold to the Boam Company by the Petitioner. Diesel fuel is a "special fuel" within the meaning of Section 206.86(1), Florida Statutes. The Boam Company is not a dealer within the meaning of Chapter 206, Florida Statutes, it has executed an exemption certificate for the benefit of the Petitioner on a form provided by the Respondent. The certificate is Petitioner's Exhibit 1, admitted into evidence. The facts in the transaction which lead the Respondent to believe that the tax is owed are constituted through the method of Boam Company sending their tanker truck to the depot/business compound of the Radiant Oil Company for purposes of picking up the diesel fuel in question. After the individual deliveries of diesel fuel were made at the compound, that fuel was then taken by the Boam Company's tanker truck to be delivered for utilization by certain off road equipment owned by Boam Company. None of the fuel in dispute was used by any form of over the road vehicle which requires a motor vehicle license. (The 55,833 gallons in dispute does not involve the first 110 gallons of diesel fuel delivered on each pickup made by the Boam Company tanker at the Petitioner's compound.) The Petitioner takes the position that Section 206.87 (4)(a) exempts the questioned transactions from the taxes set forth in Chapter 206, Florida Statutes. That provision of Chapter 206 reads as follows: 206.87 Levy of tax.- The following sales shall not be subject to the tax herein imposed: Sales by a dealer when the special fuel is delivered for home, industrial, commercial, agricultural, or marine purposes, for consumption other than use, or for resale pursuant to paragraph (c) hereof. In particular the Petitioner contends that the sale by Radiant Oil Company to the Boam Company constitutes deliveries for commercial purposes other than use or other than for resale pursuant to paragraph (c) of the same section of Chapter 206, Florida Statutes. That paragraph (c) pertains to sales of five gallons or less by a person not a dealer, when that person does not have facilities for placing this special fuel in the fuel supply system of a motor vehicle, and would not fit the facts of this case. To understand the continuation of the argument by the Petitioner, it is necessary to look at the meaning of the word "use." In Section 206.86(5), Florida Statutes, "use" is defined in this fashion: 206.86 Definitions.- As used in this part: "Use" means the placing of special fuel into any receptacle on a motor vehicle from which fuel is supplied for the propulsion thereof. It is also necessary to understand what "motor vehicle" means within the definition of Chapter 206, Florida Statutes. "Motor vehicle," is defined in Section 206.86(2), Florida Statutes, as being: 208.86 Definitions.- As used in this part: (2) "Motor vehicle" means any form of vehicle machine, or mechanical contrivance which is propelled by any form of engine or motor which utilizes special fuel and is required, or which would be required, to be licensed under the motor vehicle license law if owned by a resident. It is the Petitioner's position that the vehicles which ultimately used the diesel fuel in question, did not require any form of license under the motor vehicle license law in the State of Florida, if they had been owned by a resident, and consequently did not constitute "motor vehicles" within the meaning of the definition found in the aforementioned section. Accordingly, from the point of view of the Petitioner this utilization of the motor fuel was for purposes of consumption other than "use." The Respondent replied to the Petitioner by stating that the exempt category which would apply in this instance is that found in Section 206.87(4)(b), Florida Statutes. That provision reads as follows: 206.87 Levy of Tax. - (4) The following sales shall not be subject to the tax herein imposed: (b) Sales at the dealer's place of business if not more than 110 gallons by a dealer into a receptacle not connected to the fuel supply system of a motor vehicle for consumption other than use. In the mind of the Respondent, this provision of the law creates an exemption for the sale of the first 110 gallons by a dealer, delivered into a receptacle not connected to the fuel supply system of a motor vehicle for consumption other than "use;" and acts to the exclusion of any possible exemption under 206.87(4)(a), Florida Statutes, which has been claimed by the Petitioner. Moreover, the Respondent relied strongly on a portion of the language of Section 206.87, Florida Statutes, which states ". . . unless expressly provided to the contrary in this part, every sale shall be deemed to be for use in this state . . . " Consequently, according to the Respondent, because Section 206.87 (4)(b), Florida Statutes, addresses the kind of transaction that the petitioner is involved in, this exemption creates the only possible exclusion from tax consequences that is available to the Petitioner. The Respondent expresses a retreating argument to the effect that the use of the word "delivered" found in Section 206.87 (4)(a), Florida Statutes, would mean direct delivery to the site of the place of consumption other than "use." After examining the position of the two parties, it is the undersigned's conclusion that Section 206.87(4)(a), Florida Statutes, creates an exemption from the possible tax consequences noted in Chapter 206, Florida Statutes. This conclusion is reached because the use of the word "delivered" in Section 206.87(4)(a) is followed by the word, "for" which creates the impression that delivery could be made either at the business location of the vendor, or at the location of the equipment that would be consuming the fuel for purposes other than "use." Had the legislature intended to limit the exemption found in the quoted provision to only those transactions involving deliveries to the home, industrial location, commercial location, agricultural location, or marine location, it would seem that they would have expressed it in the terms of the necessity to deliver "to the location" as opposed to stating it in terms of delivering "for purposes." In addition, the Section 206.87 (4)(b) Florida Statutes, does not exclude the right of the Petitioner to claim an exemption under Section 206.87(4)(a), Florida Statutes, nor is it inconsistent with that prior provision. Section 206.87(4)(b) , Florida Statutes, when read in pari materia with Section 206.87(4)(a) Florida Statutes, stands on its own and involves a different category of exemption. This category of exemption would include utilization of the special fuel for home, industrial, commercial, agricultural, or marine purposes, as well as any other utilization of the special fuel other than "use." Had it been intended for this provision, Section 206.87(4)(b), Florida Statutes, to exclude the right to exemption found in Section 206.87(4)(a), Florida Statutes, there would have been a connecting phrase between the two subsections (a) and (b) such as the word "or," such as the phrase "unless it exceeds the 110 gallon exemption found in the following subsection," or some similar comment. Since that type of language does not appear, it is unreasonable to assume that the legislature intended to have the prospective exempt organization or person required to accede to the exemption which affords the least advantage. For the reasons stated above the assessment in the amount of $4,466.64 plus the possible penalty and interest asserted under Chapter 206, Florida Statutes, should be rejected.
Recommendation It is recommended that the portion of the proposed assessment to the extent of $4,466.64 together with the penalty and interest be denied, and the Petitioner not be required to make such payment. DONE and ENTERED this 19th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1978. COPIES FURNISHED: Jack G. Hand, Jr., Esquire 1320 Atlantic Bank Building Jacksonville, Florida 32202 Maxie Broome, Jr., Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32304 John D. Moriarty, Esquire Department of Revenue Room 104, Carlton Building Tallahassee, Florida 32304 =================================================================
Findings Of Fact The parties stipulated to the facts set forth in paragraphs 1-5, below. Stipulated Facts James Phillips is the president and sole shareholder of the Respondent, Sunshine Auto Sales, Inc. The Respondent's place of business is located at 2050 North West 36 Street, Miami, Florida 33142. The Respondent was issued motor vehicle dealer license number 7VI- 005928 on May 1, 1987. The Petitioner's order summarily suspending Respondent's license was dated September 17, 1987, and was served on Respondent on or about November 9, 1987. On December 22, 1987, the Circuit Court for the 11th Judicial Circuit, in and for Dade County, Florida, entered an emergency injunction against enforcement of Petitioner's Order of Summary Suspension, contingent upon the posting of a $2500 bond by Respondent. The bond was posted on March 31, 1988. Other Facts On November 17, 1976, Respondent's president and sole shareholder, James Phillips, executed a sworn affidavit as part of the application for a motor vehicle dealer license. In that affidavit, he stated that no partner or corporate officer of the Respondent had ever been arrested or convicted of a felony. In subsequent annual renewal applications for the years 1977-84, Phillips stated that all terms and conditions as set forth in the original application were correct. In actuality, Phillips was arrested for breaking and entering, theft and rape in 1956. In 1960, he was arrested for aggravated assault. In 1972, he was arrested for possession of a stolen motor vehicle. Grand larceny was the subject of his arrest in 1976. In 1982, he was arrested for aggravated battery. Phillips' statement that he interpreted this language on the application and renewal forms to be applicable only to the corporation itself is not credited due to his demeanor while testifying and the clarity of the statement on the application requiring such disclosure. The Petitioner's policy is not to deny or revoke licenses simply on the basis of an arrest record of the applicant or licensee. Instead, when the information is correctly provided by applicants or licensees, a further investigation is made by the Petitioner to determine if there has been a conviction of a crime meriting suspension or denial of a license. When Petitioner becomes aware that an applicant or licensee has falsely answered an application regarding previous arrests, the policy of Petitioner is to deny the application for licensure or institute revocation action against a licensee on the theory that such falsification shows a lack of honesty in the applicant or licensee. On February 24, 1986, and May 20, 1986, James Phillips received warning letters from the Department reminding him that failure to apply for title or to file for transfer of title within 20 days following delivery of a vehicle to a purchaser is a violation of Florida law. In June and July of 1987, an employee of Petitioner, Helen Wandell, made numerous attempts to obtain information from Respondent regarding a particular complaint against Respondent. Information was sought by Wandell regarding the identity of the vehicle which was the subject of the complaint. She telephoned Respondent's facilities on June 10, 11, 12, and 16, 1987, during regular business hours and received no answer. On June 17, 1987, Wandell went to the Respondent premises during regular business hours and found the facility closed. She left a note and James Phillips called her the following day. He gave her information concerning the subject vehicle which proved to be incorrect. Again, Wandell attempted to contact Respondent's establishment by telephone on June 22, and 23, 1987, but did not get an answer. She telephoned again on July 24, 1987, and spoke with Phillips. In the course of the conversation, he informed Wandell that he could not provide the vehicle identity information she sought. He further warned her not to call again, cursed her and threatened to kill her. Madeline Fils-Aime does not read or understand English very well. On April 8, 1987, she entered into a parol agreement to buy a 1981 Mercury automobile from Respondent. The agreed upon price, as established by testimony of Fils-Aime, was $750. This amount was to be paid in installments as the money became available to Fils-Aime. Until the total amount of $750 was paid, the car would continue to be owned by and remain in the Respondent's establishment. On April 8, 1987, Fils-Aime paid $160 to Robert Sayre, James Phillips' stepson, at Respondent's establishment toward the cost of the automobile. She received a receipt from Sayre. The receipt carried the notation "no refunds" and "sold as is." The receipt also carried a notation that the remainder of the funds would be due on April 15, 1987. Fils-Aime returned to Respondent's establishment on April 16, 1987, paid another $100, received another receipt signed by Sayre carrying a notation that the remainder would be due on April 26, 1987. This receipt also carried the notation "no refunds." Fils-Aime returned to the Respondent establishment again on April 21, 1987, and paid another $40 on the car. This time she received a receipt signed by Thomas Phillips, son of James Phillips, which carried the notation that the balance would be due on May 7, 1987. Another payment of $100 was made by Fils-Aime on May 4, 1987. Another receipt bearing the signature of Robert Sayre was received. A new balance due date of May 14, 1987, was shown on this receipt. Fils-Aime returned at a later date to make a subsequent payment, but the Respondent's establishment was closed. Approximately six weeks after the May 4, 1987, payment, Fils-Aime returned to Respondent's establishment to learn that the car for which she had been making payments was gone. Testimony of James Phillips establishes the sale of the vehicle to another person. Phillips also readily admitted knowledge of the payments made by Fils-Aime and the practice of granting extensions to her of the due date for the total balance at the time of each payment. Since his clientele is poor, he uses the "lay away" plan on occasion to sell vehicles to individuals like Fils-Aime. In spite of her demands, he did not return Fils- Aime's previous payments to her. At the time of the May 4, 1987, payment, Phillips gave Fils-Aime an envelope to use in the event the Respondent facility was closed on her return to make a future payment. He instructed her to leave the envelope with the body shop next to Respondent's establishment. A contractual document offered in evidence at hearing by Respondent to substantiate James Phillips version of the parol agreement with Fils-Aime is not credited with any probative value. The document appears unsigned by anyone and the portion of the page where Fils-Aime would have signed is conveniently torn off and missing. Additionally, Fils-Aime denied knowledge of the document. After receipt of a complaint by Fils-Aime, the Petitioner's employee was denied access to Respondent's premises to inspect Respondent's records on July 21, 1987. The request was made during reasonable business hours and within the business hours posted on the fence at Respondent's establishment. On August 31, 1987, Respondent sold a 1979 automobile to Gloria Little. Respondent did not apply for title for Ms. Little. She went to the tag agency herself because there was no one at Respondent's facility to go with her. She was unable to obtain the title transfer and contacted Petitioner's offices. A telephone call by Petitioner's employee resulted in an individual from Respondent's establishment being made available to assist and complete the title transaction on December 16, 1987. The Respondent did not apply for title transfer to a 1975 vehicle sold to Rafael Castillo on August 8, 1987. After being contacted by a Petitioner employee, Respondent applied for the title transfer on December 16, 1987. On December 29, 1987, Respondent sold a 1981 automobile to Kimberely DeNunzio. Title application to the vehicle was made in February, 1988, and issuance of the title to DeNunzio occurred February 24, 1988. The Petitioner's Order of Summary Suspension of Respondent's motor vehicle license was in effect at the time of this sale.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's license and denying the application for renewal of same. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of July, 1988. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5616, 88-2528 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS The Petitioner's proposed findings consisted of paragraphs erroneously numbered. Those paragraphs, 25 in number, have been properly numbered and are addressed as follows: 1-3. are included in findings 1-3, respectively. 4-7. are included in findings 12-18. 8-10. are included in finding 21. 11-13. included in finding 22. 14-16. included in finding 23. 17. included in finding 20. 18-19. included in finding 11. included in finding 6. included in finding 7. included in finding 8. 23-24. included in finding 9. 25. included in finding 10. RESPONDENT'S PROPOSED FINDINGS The Respondent's proposed findings were likewise erroneously numbered. Numbering has been corrected and the 36 paragraphs are addressed as follows. 1-3. included. 4-15. rejected, unnecessary to result reached. 16. included in finding 12. 17-18. included in finding 6. 19-27. rejected, unnecessary. 28-29. addressed in finding 5. rejected, on basis of credibility. included in finding 17. 32-36. rejected as unnecessary. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel State of Florida, Department of Highway Safety and Motor Vehicles Department of Legal Affairs Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Seril L. Grossfeld, Esquire 408 South Andrews Avenue Suite 101 Fort Lauderdale, Florida 33301 Charles J. Brantley Director, Division of Motor Vehicles Room B439 Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue The issue in this case is whether or not Petitioner is entitled to a refund of the bond it posted in lieu of confiscation of allegedly mislabelled gasoline products.
Findings Of Fact Petitioner, AGI Service Corporation, owns and operates a Citgo service station located at 1599 West Flagler Street in Miami, Florida. The service station sells regular unleaded, unleaded plus and unleaded premium gasoline to the public. On February 18, 1991, James Carpinelli, the Respondent's inspector, visited the station to conduct an inspection and obtain samples of the gasoline Petitioner was offering for sale to the consuming public from its tanks and related gasoline pumps. Mr. Carpinelli took samples of all three types of gasoline offered for sale by Petitioner. The samples were forwarded to the Respondent's laboratory and were tested to determine whether they met Departmental standards for each type of gasoline. The Petitioner's "premium unleaded" pump indicated the octane or Anti Knock Index of the gasoline was 93. The "regular unleaded" pump indicated that the octane level was 87. The laboratory analysis of the samples revealed that the octane level of the gasoline taken from the "premium unleaded" pump was 87.4. The octane level of the gasoline taken from the "regular unleaded" pump was 93.0. Upon discovering the discrepancy in the octane levels, the Respondent seized the gasoline and immediately allowed the Petitioner to post a bond in the amount of $1,000. Upon the posting of the bond, the product was released back to the possession of the Petitioner and was allowed to be sold after the pumps were relabelled. Petitioner acquired ownership of the service station four days prior to the time of the inspection. At the time they opened the station, the new owners labelled the pumps based upon the information provided to them by the prior owners. The new owners had limited experience in the petroleum business and followed the guidance of the prior owners regarding labelling the pumps. It is clear that the pumps were inadvertently mislabelled based upon the information provided by the prior owners. The new owners sold "premium unleaded" at the price of "regular unleaded" and visa versa. Because more "premium unleaded" was sold at the price for regular, Petitioner lost money as a result of the mislabelling. The Department seeks to assess the full amount of the bond against the Petitioner in this proceeding. Respondent calculated the number of gallons of mislabelled gasoline that was sold based upon a delivery date of February 13, 1991. Those calculations indicate that 2,498 gallons were sold at a price of $1.259 per gallon. However, Respondent's calculations appear to begin at a time prior to Petitioner's ownership of the station. No evidence was presented as to how many gallons were sold while Petitioner owned the station. In addition, it is not clear when the mislabeling was done. Thus, no clear evidence was presented as to how many mislabeled gallons were sold by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Agriculture and Consumer Services enter a Final Order granting the request of the Respondent for a refund of the bond posted and that the Department rescind its assessment in this case. DONE and ENTERED this 4th day of October, 1991, at Tallahassee, Florida. J. STEPHEN MENTON 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 4th day of October, 1991. COPIES FURNISHED: LOUIS PASCALI AND DONATO PASCALI QUALIFIED REPRESENTATIVES AGI SERVICE CORPORATION 1599 WEST FLAGLER STREET MIAMI, FL 33147 JAMES R. KELLY, ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES ROOM 514, MAYO BUILDING TALLAHASSEE, FL 32399-0800 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800 BRENDA HYATT, CHIEF BUREAU OF LICENSING & BOND DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 508 MAYO BUILDING TALLAHASSEE, FL 32399-0800
The Issue The issues in this case concern the question of whether Respondent is subject to the payment of a $2,078 fine for violation of Section 316.545, Florida Statutes. That statutory provision relates to operation of a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On April 9, 1990, a commercial vehicle operated by Respondent, as carrier, was stopped and inspected by Petitioner's inspector Deborah Charlene Andrews. This inspection took place in Jackson County, Florida. The commercial vehicle operated by Bobby Charles Alphin was weighed. It was determined that the gross vehicle weight was 76,560 pounds. Before entering Florida the commercial vehicle in question had been issued a fuel use trip permit effective April 8, 1990 through April 18, 1990. By contrast the commercial vehicle did not have either an apportioned, 10-day or single-trip vehicle registration which would allow it to operate in Florida on April 9, 1990. A copy of the fuel use emergency trip permit referred to before is found as Petitioner's Exhibit No. 1, admitted into evidence. A copy of the apportioned vehicle registration and identification cab card for the vehicle may be found as Petitioner's Exhibit No. 2, admitted into evidence. It does not reflect registration in Florida in the apportionment. Florida records do not reveal that a 10-day temporary International Registration Plan (I.R.P.) trip registration had been issued or a single trip permit issued registering the commercial vehicle in question. In the absence of such a registration allowing the trip in Florida, the inspector issued a trip permit registration upon the payment of a $30.00 fee as referred to in Petitioner's Exhibit No. 4, admitted into evidence. This exhibit is a copy of the I.R.P. trip permit. The trip permit that was issued allowed operation in Florida for 10 days. A copy of the load report and field receipt executed by the inspector may be found as Petitioner's Exhibit No. 3, admitted into evidence, which reflects the gross vehicle weight and the fact that this exceeded the legal weight of 35,000 pounds and the assessment a $.05 per pound fine for the weight above the legal weight. That fine is $2,078 for being overweight in the amount of 41,560 pounds. Again that overweight amount is derived in subtracting the allowed weight of 35,000 pounds from the gross vehicle weight of 76,560 pounds.
Recommendation Based upon the consideration of the facts found and in view of the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which fines the Respondent in the amount of $2,078 for violation of Section 316.545, Florida Statutes. DONE and ENTERED this 12th day of March, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1991. APPENDIX The facts as proposed by the Petitioner are subordinate to fact found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Philip R. Polachek, General Manager Little Donkey Enterprises, Inc. Post Office Box 822 Estacada, OR 97023 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
