The Issue Whether or not the July 21, 1991 civil penalty imposed against Respondent's truck for weighing more than the weights posted for the bridge at the St. Mary's River on US-17 (SR 5), Nassau County, was correct and properly assessed pursuant to Sections 316.545 and 316.55, F.S.
Findings Of Fact On July 21, 1991, the bridge at St. Mary's River on US-17 a/k/a SR 5 in Nassau County, Florida was posted on both sides of the river at 32 tons (64,000 pounds) for a combination truck-tractor semi-trailer. (P-1) On that date, and in that place, Weight Inspector Harvey L. Vickers stopped Respondent's combination truck-tractor, semi-trailer and subsequently weighed it at the #2 scale at Yulee, Florida. He then issued Load Report 37553K (P-2) to Respondent's driver. In so doing, Inspector Vickers checked a box on the Load Report showing that the vehicle in question was traveling north. However, his more detailed written narrative Case Report described the vehicle as traveling south. (R-3) Inspector Vickers also filled out the Load Report to show that the vehicle weighed 79,340 pounds and was in excess of the posted legal weight by 15,340 ponds. The appropriate subtraction showing overweight poundage was not originally done by Inspector Vickers in the proper columns or boxes of the Load Report, but Inspector Vickers corrected the Load Report by inserting arrows to show the proper location of the figures. He used the arrows, instead of making erasures, because the Load Report form is on NCR paper which cannot be erased. The weighing and fine were imposed between 7:50 p.m. and 8:25 p.m. on July 21, 1991. The vehicle's weight/overpoundage was calculated out at $.05 per pound for a fine of $767.00. In this instance, the "carrier" technically was Unit Transportation, but the fine was actually paid by Respondent. Respondent's Bill of Lading (R-2) indicated that the vehicle picked up its shipment in Doraville, Georgia. The load was comprised of paper weighing 44,000 pounds, destination Sanford, Florida. (R-2) Sanford Florida is south of the location where Respondent's truck was stopped and weighed by Inspector Vickers. The logical and reasonable inference therefrom is that the truck was traveling south and had crossed the low-weight bridge prior to the time it was stopped by Inspector Vickers. Also, the vehicle would have had to have been traveling south in order to have already crossed the bridge when stopped by the Florida inspector because the north end of the bridge is in Georgia and the south end of the bridge is in Florida. On July 2, 1991, the #2 scale which was used by Inspector Vickers on July 21, 1991 to weigh Respondent's truck had been inspected and certified as weighing "light" by 40 pounds. This certification had been done, pursuant to statutory mandate, by the Florida Department of Agriculture. (P-4) Thus, it is probable that Respondent's vehicle actually weighed 40 pounds more than that recorded by Inspector Vickers on his Load Report. 1/ Respondent presented a Brunswick Georgia weight ticket purportedly showing that the vehicle in question had a gross weight of 76,760 pounds 2/ on July 21, 1991 at 5:42 p.m. However, the truck I.D. number on this weight ticket (R-5) did not match that of the unit number on the Load Report (P-2), and there is no direct evidence as to whether or not any weight was added to either truck after that weighing in Brunswick Georgia and before the truck which was penalized crossed the St. Mary's Bridge. There is, therefore, no competent evidence to show that Respondent's truck weighed less than the 79,340 pounds recorded by Inspector Vickers on the Load Report.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the penalty of $767.00 was correctly assessed against Respondent pursuant to the provisions of Sections 316.545 and 316.555, F.S. and that since Respondent has already paid his fine, nothing else is owed between the parties. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of March, 1992. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1992.
Findings Of Fact Leamington (Petitioner herein), is a road maintenance and construction contractor doing business since approximately 1985. John Hummell is Petitioner's President and is responsible for all bids submitted for contract awards. Petitioner contracts primarily with the Florida Department of Transportation (Respondent herein). Since 1985, Petitioner has entered into approximately forty-one (41) contracts with Respondent. Petitioner was one of seven bidders on State Job #17030-3536, Contract E-1706, let by Respondent in District I. Respondent notified Petitioner of its decision to award the bid to the second lowest bidder, Simco, by notice posted on April 19, 1993 stating that Leamington's bid was rejected because it was considered not to be responsible and was not in the best interest of the Department (to contract with Leamington). The work in question involves the repairs of the bridge located at SR- 789 at Little Ringling Causeway west of Sarasota in Sarasota County. The work entails removal and replacement of silicone sealant on the bridge deck and replacement and rejacketing of piling with grout epoxy. The bid tabulations revealed that Petitioner's bid was approximately $500.00 less than that of the second lowest bidder, Simco, Inc., of Sarasota. The Department has a procedure called the "district contracts procedure". Part of the procedure calls for the awards committee to review bids and determine who the bid should be awarded to. The awards committee, which was chaired by Glenn Ivey, the District Director of Operations, reviewed the bid submitted for project E-1706. The awards committee voted unanimously to reject Leamington's bid on Contract E-1706. The decision to reject Petitioner's bid, by the awards committee, was based on Petitioner's performance on its more recent Department contracts. Specifically, the awards committee considered projects E-1649, for sidewalk repair in several counties; contract E-1545, a concrete repair job in Lakeland; and contract E-1652, a roadway shoulder repair job. Leamington's contract on the concrete repair job (E-1545) was rated as being poor when Leamington was, in effect, asked to leave the job. Based on Leamington's poor workmanship and difficulties encountered on that contract, Respondent terminated work on the contract after approximately sixty percent (60 percent) of the work was completed. The remainder of that project was completed by another contractor. Specifically, Job No. E-1545 called for Petitioner to remove and replace portland concrete slabs on Memorial Boulevard in Lakeland. Petitioner failed to restore the concrete slabs to a smooth surface, making it necessary for Respondent to have the slabs ground such that motorists had a smooth driving surface. After several warnings, Respondent cancelled the project and, as noted, approximately forty percent (40 percent) of the work was completed by another contractor. Another project reviewed by the awards committee was Contract E-1652, a roadway shoulder repair contract. On that project, Petitioner was advised that the shoulder had to be graded at a certain angle and was shown, by several of Respondent's engineers, the proper manner in which to accomplish the task. Petitioner failed to grade the shoulder at the correct angle as requested. Petitioner also routinely failed to provide proper traffic control during the performance of Contract E-1652 and frequently disputed Respondent's employees advice as to work instructions and ways to eradicate the poor workmanship on that project. Additionally, Petitioner failed to use skilled workers and did not have ample equipment on the job to perform the work on Contract E-1652. Initially, Petitioner had limited equipment at the beginning of the work on Contract E-1652. After Petitioner received a letter from Respondent advising that there wasn't adequate equipment to complete the project, Petitioner obtained additional equipment. The Department terminated Petitioner's work under Contract E-1652 because Petitioner had approached the contract deadline for completion and due to of the numerous problems the Department experienced with Petitioner in getting the work completed acceptably. Bobby Cranford, the Assistant Maintenance Engineer for the Petitioner's Sarasota Maintenance Unit, recommended that Petitioner not be awarded any more roadway shoulder repair contracts based on the difficulties experienced by Petitioner's "poor" workmanship on contract E-1652. Another project reviewed by the awards committee was Petitioner's work performance on Contract E-1649, a sidewalk repair job which encompassed several counties. Petitioner did not have the required personnel and expertise to perform the sidewalk job correctly. Petitioner was kept informed of deficiencies and necessary corrections to correctly perform the sidewalk repair job, however, the proper repairs have not been made. The Respondent introduced a composite of twenty-three (23) photos showing the extent of the problems Petitioner needed to correct the sidewalk repairs with notes as to the corrective action that was needed. Specifically, Petitioner used little expansion joint materials and no edging tools were utilized on the project. Similar problems were found throughout the four county area in which Petitioner was engaged on the sidewalk project. By letter dated May 13, 1993, Respondent advised Petitioner of the numerous problems on contract E-1649. Specifically, Petitioner's President was told of visual inspections which showed substandard work on the original work as well as the work wherein Petitioner attempted to correct deficiencies which were discovered by Respondent. For example, Petitioner was advised that at 506 First and Main Streets in Wachula, there were sections of concrete sidewalk removed and scheduled for replacement with adjacent sections now damaged. Petitioner was further advised that workers had driven trucks on the sidewalk damaging several slabs not marked for replacement. Finally, Petitioner was asked to correct broken sprinklers at the work site and to resolve a claim filed by a Mrs. Campbell, which was registered with Respondent. The awards committee also relied upon an independent inspection report prepared by Bobby Cranford. That report is a forty (40) page report citing numerous deficiencies on the sidewalk repair project. Respondent requires that contractors employ english speaking superintendents at each work site to assist in communicating with its inspectors. Petitioner utilized superintendents who did not speak english and thereby created a language barrier making communication difficult with Respondent's personnel. Respondent had to monitor Petitioner's projects extensively and at a cost which increased the Department's overhead disproportionately when compared to other projects let to other district contractors. Based on a review of Respondent's work on Petitioner's recent contracts, no other contractors performing contracts in District I had a performance record as poor as Petitioner. When the awards committee made its decision to reject Petitioner's bid on the subject contract, it also relied on a memorandum from , Wally Clark, a District I attorney. In the memorandum it was concluded that Petitioner had subcontracted work to Hummell, Inc., a separate entity and that the required prior written approval of the subcontracting had not been obtained from Respondent. The investigation also revealed that the subcontractor, Hummell, Inc., had not been paid for its services (by Petitioner). An internal audit also prepared by Wall revealed that Hummell, Inc. was an unpaid subcontractor of Petitioner. The awards committee also considered allegations from Phillip Spears, a subcontractor of Petitioner, who had not been paid for work performed on Respondent's contracts. The committee also considers a newspaper article which stated that Petitioner was under investigation by local law enforcement officials for failure to pay subcontractors on the Interstate 75 project. Dennis Hall is the District Investigator for District I. Hall accompanied Wall, the author of the internal audit report, on investigations and interviews in compiling the audit report. One of the persons interviewed by Wall and Hall was Larry Zavitz. Zavitz was an inspector employed by Petitioner in excess of twenty- eight (28) years and had performed the inspection on Petitioner's sidewalk repair project under Contract E-1649. During the interview of Zavitz, he admitted to receiving a loan of $1,000.00 from John Hummell which Zavitz had not fully repaid at the time of the interview. Upon Zavitz admission of accepting the loan, he was asked and later resigned from the Department.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED that: Petitioner's protest of the rejection of its bid on Contract E-1706 be rejected and the Department enter its award of the subject contract to the second lowest responsible bidder, Simco, Inc. of Sarasota. DONE AND RECOMMENDED this 8th day of September, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 8th day of September, 1993. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Haydon Burns Building 562 Suwannee Street Tallahassee, Florida 32399-0458 William H. Roberts, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Michael E. Riley, Esquire 106 East College Avenue Post Office Box 10507 Tallahassee, Florida 32302
Findings Of Fact Respondent owns and operates a tractor-trailer combination that it uses for hauling a large crane. As configured at the time in question, the gross vehicle weight was 127,780 pounds, which is distributed over one steering axle, a four-axle combination at the rear of the trailer, and a three- axle combination between the other axles. The four-axle combination bore 60,280 pounds. The outerbridge of the vehicle, which is the distance from the front axle to the rear axle, was over 70 feet. Respondent, which is a small company located in Tennessee, transports its crane throughout the southeastern portion of the United States. Respondent employs a company known as Comchek to secure the necessary permits for the trips. In this case, Comchek obtained for Respondent a Trip Permit dated April 12, 1989. The permit states that the trip is from the Georgia line to the Alabama line on Interstates 95, 295, and 10. The permit notes that the vehicle is 75 feet long, has eight axles, and weighs 135,000 pounds. One of the special requirements on the permit states: "If overweight, a max (3)000 axles allowed per grouping with a minimum of 10 feet to next adjacent axle, center to center." The "000" represents a graphic depiction of three axles. Respondent's vehicle did not meet the axle-grouping requirement. Less than 10 feet separated the four axles in the rear from each other. Thus, the vehicle, if overweight, violated this condition of the permit. The permit contains only two references to weight. One notes the gross weight. The other is in a special condition and requires that overweight vehicles obtain an 80,000 pound license tag. Although the Trip Permit does not clearly disclose on its face that any weight over 80,000 pounds is overweight, Respondent's representatives were on notice that their long and heavy vehicle exceeded the normal weight restrictions so as to be classified as "overweight." The permit's reference to 135,000 pounds cannot be construed to set the standard over which a vehicle would be overweight. Otherwise, the permittee could use the permit to transport a 300,000 pound load on an eight-axle vehicle as long as the vehicle had no axle groupings of more than three. The failure to obtain the proper permit was the fault of Respondent or its agent, Comchek. Either Respondent did not communicate the axle groupings to Comchek or Comchek did not communicate them to Petitioner. In either event, through no fault of Petitioner, the Trip Permit obtained by Respondent was violated the moment the vehicle crossed the Florida line. Inspecting the vehicle at the Sneads inspection station at 6:53 a.m. on April 14, 1989, Petitioner's representatives discovered the violation. The Load Report and Field Receipt of the same date, which cites a violation of Section 316.545, Florida Statutes, states that the gross weight of 127,780 pounds exceeds the legal weight of 80,000 pounds by 47,780 pounds. The resulting penalty is $2389. The receipt acknowledges payment under protest. At 9:53 a.m. on the same date, Petitioner issued to Respondent a second Trip Permit that suspended the requirement of 10 feet between axle groupings. Petitioner released the vehicle at 11:05 a.m., and the vehicle completed the remainder of its trip in Florida without incident. The expedience with which Petitioner issued the second Trip Permit was largely because Respondent had already crossed the bridges that were most vulnerable to excessive loads. However, due to the length of the outerbridge and the number and distribution of axles, Petitioner's expert determined that Petitioner would have, after computer analysis, issued a permit for the vehicle as originally configured, if the proper information had been supplied.
Recommendation Based on the foregoing, it is recommended that the Commercial Motor Vehicle Review Board enter a Final Order finding Respondent guilty of violating the above-cited statutes and imposing a fine of $2389 or such lesser amount as the Board may deem appropriate. DONE and ORDERED this 13th day of December, 1989, 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 this 13th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4523 Treatment Accorded Proposed Findings of Petitioner 1-6: adopted or adopted in substance. 7 and 12: rejected as recitation of testimony, argument, and not finding of fact. 8-11: rejected as subordinate. 13-16: adopted or adopted in substance. 17: rejected as against the greater weight of the testimony of DOT's expert witness, Larry H. Davis. There is no evidence that the outerbridge was only 51 feet. There is conflicting evidence as to the length of the outerbridge, which is at least 64 feet. The diagram that Respondent gave to Petitioner in applying for the permit states that the vehicle length is 75 feet. Subtracting the distance of five feet and three inches between the centerline of the rearmost axle and the rear extreme of the vehicle, the outerbridge is almost 70 feet. However, adding up the confusing distances given on the diagram, which among other shortcomings is clearly not drawn to scale, the total outerbridge is 54 feet. The distance between the centerline of the three-axle grouping and the four-axle grouping was 30 feet. The distance between the first and fourth axle in the rear is about 13 feet. The distance between the steering axle and the rearmost of the three-axle group is about 21 feet. COPIES FURNISHED: David M. Maloney Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1602 Tallahassee, Florida 32399-1050 Carl R. Nidiffer, President Precipitator Services Group, Inc. P.O. Box 339 Elizabethton, TN 37644 Ben Watt Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Elyse S. Trawick, Executive Secretary Commercial Motor Vehicle Review Board Department of Transportation 605 Suwanee Street Tallahassee, Florida 32399-0450 STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION COMMERCIAL MOTOR VEHICLE REVIEW BOARD, DEPARTMENT OF TRANSPORTATION, Petitioner, vs. DOAH CASE NO. 89-4523 PRECIPITATOR SERVICES GROUP, INC., Respondent. /
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 issues in this case are (1) whether the Petitioner, the Department of Transportation, should assess against the Respondent, Cypress Creek Landscape Supply, Inc., a penalty for violating the Taylor Road bridge weight restriction, and (2), if so, the amount of the penalty.
Findings Of Fact On February 9, 1990, a commercial motor vehicle owned and operated by the Respondent, Cypress Creek Landscape Supply, Inc., was driven over the bridge over Alligator Creek on Taylor Road (County Road 765A), a federal aid primary highway near Punta Gorda, Charlotte County, Florida. The vehicle, loaded with mulch, was weighed at 71,760 pounds. The Taylor Road bridge is part of a route that can be taken by I-75 traffic wishing to bypass one of the Department's I-75 weight stations. The bridge is posted as being restricted to a maximum weight of 22 tons. The weight restriction is posted at the bridge, and warnings that the weight restricted bridge is ahead appear at conspicuous places at terminals of all intermediate crossroads and road junctions with the section of Taylor Road containing the weight restricted bridge. Notices are posted twice near the exit from I the Respondent's vehicle used to bypass the Department weight station. From these locations, the Respondent's vehicle could have been turned around to avoid the weight restricted bridge. A Department Compliance Officer cited the Respondent for violating the maximum weight restriction for the Taylor Road bridge and assessed a $1,388 penalty, calculated at five cents per pound by which the scaled weight of the vehicle (71,760) exceeded the maximum weight (44,000 pounds). The Department's Form 509-13, Revised 05/89, titled the "Load Report and Field Receipt," specifies that, in subtracting the legal weight from the the scaled weight to determine the amount of overweight, a ten percent tolerance should be added to the legal weight. This is how the Department interprets and applies the requirement of Section 316.545(2)(a), Fla. Stat. (1989), that, for enforcement purposes, all scaled weights of the gross or axle weight of vehicles and combinations of vehicles shall be deemed to be not closer than 10 percent to the true gross weight.
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 the Respondent, Cypress Creek Landscape Supply, Inc., guilty of violating the Taylor Road bridge weight restriction and assessing a $1,168 penalty (reduced from $1,388). RECOMMENDED this 29th day of May, 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 29th day of May, 1991. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Steven P. Lewis, President Cypress Creek Landscape Supply, Inc. 12734 North Florida Avenue Tampa, Florida 33612 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Elyse S. Kennedy Executive Secretary Commercial Motor Vehicle Review Board Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether American Engineering and Development Corporation committed the violations alleged in Load Report and Field Receipt Number 49975L and, if so, the amount of the penalty which should be imposed.
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 31, 1995, Officer Joseph Borras, of the Department's Motor Carrier Compliance Office, observed Jose R. Sanchez operating a commercial motor vehicle on State Road 862, which is also known as Interstate 595, in Broward County, Florida. The vehicle was a tractor/trailer combination carrying a hydraulic excavator, both of which were owned by American Engineering. The air-regulated axle of the vehicle was in the up-right position, causing Officer Borras to stop the vehicle. At Officer Borras's request, Mr. Sanchez produced the Overweight/Overdimension Permit issued to American Engineering for "construction and industrial equipment and prefab. structural item on trucktractor semitrailer;" the permit included a permissible gross weight of 132,000 pounds. This permit, known as a blanket permit, contained conditions which, if violated, would void the permit in its entirety. Permit condition number 7 required maps to be attached to the permit identifying the approved routes for the vehicle to which the permit applied. Permit condition number 8 provided that the permit was void if the required maps were not attached. 1/ There were no maps attached to the permit produced by Mr. Sanchez for the American Engineering vehicle, a violation of permit condition number 7. American Engineering's Overweight/Overdimension Permit was, therefore, void in its entirety. Officer Borras had reason to believe that the vehicle exceeded the statutory weight limit of 80,000 pounds established in section 316.535(4) and (5), Florida Statutes (1993). He escorted the vehicle to a safe area and weighed the tractor/trailer combination, together with the hydraulic excavator which it carried, using portable scales issued to him by the Department. The scales had been inspected on January 9, 1995, by technicians of the Florida Department of Agriculture and Consumer Services and were found to be accurate. Officer Borras weighed the vehicle in accordance with the training he had received from the Department and determined the vehicle's total weight to be 133,400 pounds. Based on this weight, Officer Borras determined that the vehicle weighed 53,400 pounds more than the 80,000-pound weight limit, 2/ and he issued Load Report and Field Receipt Number 49975, assessing a penalty of $.05 cents per pound of excess weight. The resulting penalty, as calculated by Officer, was $2,670.00. At the time, American Engineering did not object to the weight determined by Officer Borras, and it immediately paid the penalty assessed in order to obtain the vehicle's release from the Department's custody. American Engineering does not dispute that it violated the conditions of its special permit and that the entire permit was void, including the provision allowing the vehicle and its load to weigh up to 132,000 pounds. American Engineering disputes the Department's determination that the vehicle weighed 133,400 pounds. Benjamin Bolet, the equipment manager for American Engineering contends that it was impossible for the vehicle and its load to weigh 133,400 pounds. Based on the manufacturer's specifications of the operating weight of the hydraulic excavator and the known weight of the tractor/trailer combination, Mr. Bolet estimates that the vehicle, together with its load, should have weighed 116,560 pounds. Mr. Bolet supported American Engineering's position by introducing a Load Report and Field Receipt dated June 23, 1995, which he claimed involved the same or identical equipment and which showed a weight of 118,000 pounds. There are numerous variables which would affect the gross weight of a tractor/trailer combination and hydraulic excavator, including the type and number of tie-downs used to attach the excavator to the trailer, the amount and type of hardware attached to the excavator, the amount of gasoline in the tractor and in the excavator, and the amount of dirt on the equipment. There is no evidence that the condition of the hydraulic excavator was the same as that of the equipment used to determine the manufacturer's specifications. There is, likewise, no evidence that the condition of the tractor/trailer combination and hydraulic excavator weighed June 23 was the same as that of the equipment which is the subject of this proceeding. And, finally, there is no evidence that the scales used by Officer Borras were inaccurate or that the procedures he used in weighing the vehicle were improper. The evidence is clear and convincing that American Engineering violated the conditions of its Overweight/Overdimension Permit, that the permit was, therefore, void, and that the tractor/trailer combination and the hydraulic excavator it carried had a combined gross weight of 133,400 pounds, exceeding the statutory maximum weight of 80,000 pounds by 53,400 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 American Engineering and Development Corporation violated section 316.545(3), Florida Statutes (1993), in the amount of 53,400 pounds and that American Engineering is not entitled to a refund of the $2,670.00 penalty assessed against it. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of July 1996. PATRICIA HART MALONO 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 3rd day of July 1996
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice dentistry and for regulating such licensees on behalf of the state. Respondent practices general dentistry under license number DN 0002494. Background Mr. Hubert Anderson is a 70-year-old male (the "patient"). The patient initially saw Respondent in September, 1989, for replacement of a three-unit gold bridge that had been seated many years earlier. The patient did not experience any pain from the old bridge. However, the old bridge had to be replaced because tooth #8 had abscessed and needed to be removed. On October 30, 1989, Respondent constructed and installed a porcelain- fused-to-metal bridge. The bridge is a six unit, anterior, fixed bridge for teeth numbers 6-11. The pontics of the bridge are located in the space formerly occupied by the patient's two anterior teeth, numbers 8 and 9. The two crowned teeth on either side of the pontics, numbers 6,7, and 10,11, form the abutments in the bridge that hold the pontics in place. 2/ Respondent built up tooth number 10 with dissolvable dental cement. A non-dissolvable material should have been used to build up tooth number 10. The patient experienced generalized pain and soreness in the mouth immediately upon installation of the bridge by Respondent. The patient returned to Respondent's office approximately one month later complaining that everything hurt. Respondent told the patient that nothing was wrong. However, Respondent offered to replace the bridge if the patient would have root canals done on all four abutments. 3/ Respondent did not confirm his diagnosis with x-rays. Open margins caused by an ill fitting bridge can cause symptoms similar to those associated with the need for root canals including: sensitivity to hot and cold; sensitivity upon chewing or eating sweet, sour, or salty food; and generalized aching. Open Margins The pain experienced by the patient was caused by the ill fitting bridge constructed and installed by Respondent. The substructure of the bridge was so ill fitting that the entire bridge needed to be replaced in 1991. 4/ None of the bridge margins fit well around the abutment teeth. 5/ Tooth number 6 has grossly open distal and mesial margins. Tooth numbers 7 and 10 have grossly open distal, mesial, and facial margins. Tooth number 11 is sensitive to percussion and has open margins circumferentially. 6/ The open margins in the bridge constructed and installed by Respondent jeopardize the patient's health. The open margins present areas where bacteria and food debris can collect and lead to decay or plaque. Open margins also expose nerve endings in dentin and cause discomfort. 7/ Other Causes Excluded The open margins in the bridge constructed and installed by Respondent are not caused by decay. A porcelain-fused-to- metal bridge with properly adapted margins at the time the bridge is seated in the patient's mouth will not exhibit open margins over a short period of time unless there is recurrent decay which erodes the teeth away from the bridge margin. The patient does not exhibit recurrent decay. The patient's decay resistance is evidenced by his age and lack of fillings or cavities in his teeth. The absence of recurrent decay was documented in two separate dental examinations. 8/ The open margins in the bridge constructed and installed by Respondent are not caused by gum recision. The patient has no periodontal problems, including periodontal problems in the area where the bridge is located. 9/ The open margins in the bridge constructed and installed by Respondent are not caused by normal wear and tear. The open margins on a porcelain-fused- to-metal bridge do not expand under normal wear and tear. Even if expansion were to occur as a result of normal wear and tear, the expansion would be slight and would occur over a period of 10 to 15 years. The margins in the bridge installed by Respondent are gross margins that were present when the bridge was installed. They were documented by examination within two years of the date of installation. The open margins in the bridge constructed and installed by Respondent are not caused by expansion of the metal in the porcelain-fused-to-metal bridge. If the bridge margins were closed at the time the bridge was initially seated, and then later opened due to expansion of the underlying metal, the porcelain veneer on all of the abutments would have fractured. The porcelain on the patient's abutments is intact. 10/ Negligence And Incompetence Respondent is incompetent and negligent within the meaning of Section 466.028(1)(y). Open margins in the patient's bridge are the result of Respondent's failure to meet the minimum standards of performance in installing the patient's bridge. 11/ Prior to permanently cementing a bridge to a patient's mouth, a dentist should "try-in" the bridge, checking all margins, contacts, and occlusion by clinical examination and x- ray. Respondent failed to meet the minimum standards of performance for dentists by failing to detect the open margins at the time of the try-in and by failing to remake the bridge by retaking the impression and sending it back to the laboratory for re-fabrication. The patient complained of pain on at least two separate occasions. Respondent's failure to use x-rays to determine the cause of the patient's complaints of pain failed to meet the minimum standards of performance for dentists. All crown and bridge margins should end on sound tooth structure. The bridge installed by Respondent is short and does not finish on sound tooth structure. The failure to finish on sound tooth structure fails to meet the minimum standards of performance for dentists. The margin on tooth number 10 ends on the build-up of cement and not on sound tooth structure. The failure to finish the bridge on non-dissolvable material fails to meet the minimum standards of performance for dentists. Respondent failed to detect open margins when initially fitting the bridge on the patient and upon two subsequent examinations. Respondent diagnosed the patient as needing root canals without verifying the diagnosis with x-rays. Respondent failed to determine the cause of the patient's pain on two separate examinations including the failure to use x-rays for diagnostic purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 466.028(1)(y), reprimanding Respondent, imposing a fine of $3,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed in Petitioner's PRO. RECOMMENDED this 18th day of July, 1995, in Tallahassee, Florida. DANIEL S. MANRY 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 18th day of July 1995.
Findings Of Fact The Respondent Dennis Soucek is a licensed dentist in Florida. On April 11, 1981, Ms. Elaine Yarbrough consulted the Respondent Soucek concerning dental treatment for extreme protrusion of her four front teeth. The Respondent and Yarbrough discussed various treatment plans including fixed and removable prostheses and orthodontics. On June 23, 1981, the Respondent Soucek extracted Yarbrough's four protruding teeth and provided her with a temporary bridge. The Respondent intended for Yarbrough to wear the temporary appliance until her gums had receded sufficiently to receive a permanent fixed bridge. In normal cases, a six-week period is advised after extraction and before impressions are taken for a permanent bridge to allow gum recision to take place. In this case, however, the Respondent allowed a period of approximately three months to transpire before the permanent impression was made. The added period of time was taken by the Respondent as a precautionary measure due to the extreme protrusion which was present in Yarbrough's mouth prior to the extractions. However, notwithstanding the three-month period, Yarbrough's gums continued to recede after the impressions were made and the bridge was installed, which caused a pronounced ledge to form around the gum line and the pontics. Approximately two months after permanent placement of the bridge, Yarbrough returned to the Respondent's office and asked him to solve a problem that had developed of air entering under her bridge. The Respondent attempted to solve the problem by using a porcelain repair kit. When the Respondent could not get the kit to properly bond to the teeth, he suggested to Yarbrough that more time be allowed for the unforeseen shrinkage to end before further repair attempts were made. The Respondent never saw Yarbrough again after this final visit. The Petitioner's expert, Dr. Mervyn Dixon, D.D.S., who examined Yarbrough, was primarily concerned that the pontics installed by the Respondent showed poor adaption to tissue in that the gingival facial aspect of the pontics exhibited the "heavy ledge" referred to previously and that the labial tissue surfaces of the central pontics were pressing against the incisive papilla to the extent that there was a blanching due to lack of circulation. Additionally, Dr. Dixon testified that it is not acceptable to use filling material to repair a new bridge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Dentistry finding the Respondent Soucek guilty of violating Section 466.028(1)(y), Florida Statutes (1981) in his treatment of the complainant, placing him on probation until such time as he furnishes evidence of completion of thirty (30) hours of continuing education in bridge work, and imposing a $1,000 administrative fine. DONE and ORDERED this 24th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hugh Maloney, Esquire PATTERSON & MALONEY 790 East Broward Boulevard Post Office Box 030520 Fort Lauderdale, Florida 33303 Fred Varn, Executive Director Florida Board of Dentistry Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. CASE NOS. 0024080 (DPR) 82-2947 (DOAH) DENNIS SOUCEK, D.D.S., Respondent. /
Findings Of Fact On January 20, 1988 the City made application to the Department for issuance of a dredge and fill permit to replace an existing wooden bridge known as the Lynnhaven Terrace Bridge which crosses Deep Bottom Creek in Duval County, Florida. At that time the existing bridge was a two lane timber bridge measuring approximately 20 feet wide, having two spans of 19 feet and 14 feet respectively with associated guardrails. The replacement bridge was to be 44 feet wide and 37 feet long. Subsequently, a revision was made to the permit application which called for reduction in the width of the bridge to 39 feet. A copy of the original application may be found as City's Exhibit 2 admitted into evidence and the revision was received as City's Exhibit 3. The bridge in its revised format would include two paved lane and two sidewalks on the outside of those lanes. This bridge too would have guardrails. The bridge replacement project would involve the dredging of approximately 122 cubic yards of material from the creek bottom and the installation of 12 concrete pilings along the riverbank. Approximately 4.75 cubic yards of fill will be placed below the mean high waterline and 690 cubic yards above that line. Stabilization of the north and south banks of the side of the bridge will be accomplished with 160 linear feet of sheet pile wall. The total acreage to be filled is approximately 1.1 acres with 0.002 acres being in wetlands or open waters within the Deep Bottom Creek. By this arrangement, part of the activities are within waters of the state and the upward extent of those waters and confer jurisdiction on the Department to require a dredge and fill permit and water quality certification. The jurisdiction of the Department extends to the mean high waterline of the creek in accordance with Section 403.913(2), Florida Statutes, and this takes into account the opportunity to examine the implications of dredging and filling associated with the project. The waters at issue are Class III waters. Black Bottom Creek is part of a drainage basin leading to the St. Johns River, a major water body. The reason for this project concerns the present bridge's deteriorating condition as shown in the City's Composite Exhibit 1, a series of photos. The bridge is in such disrepair that it has been downgraded in its load rating to three (3) tons, which is inadequate to support heavy vehicles, to include emergency vehicles such as firetrucks. With the advent of the concrete bridge, this problem would be rectified. An attempt to effect repairs on the existing bridge is not a reasonable choice for the City. The Department, in response to the application, conducted an assessment of that application or appraisal to include biological and water quality concerns. A copy of the report rendered in response to the application may be found as the Department's Exhibit 1. That report favors the grant of a permit in water quality certification and at the date of hearing that opinion was still held by the Department. The report points out that the project would straighten out a problem with a curve in the creek course by the choice of location for the new bridge. This arrangement will assist in the flow pattern and give a positive influence in preventing shoaling underneath the existing bridge. It will also positively affect the problem of the erosion in the upland area of the existing bridge which causes deposition of material into the creek bottom. The report describes the fact that steps to contain turbidity during the construction phase can be achieved. Having been satisfied concerning this application, an Intent to Issue a Permit and water quality certification was stated on April 15, 1988. A copy of the Intent to Issue may be found as Department's Exhibit 2 admitted into evidence. The permit was to be issued on condition concerning the question of authority to operate in waters of the state as contemplated by Chapter 253, Florida Statutes. That matter is not one for consideration in the present dispute. It also refers to preservation of historical and archeological artifacts. There has been no demonstration that such artifacts exist in the area of this project. The turbidity control mechanisms were mentioned as a special condition and as suggested before, those matters can be attended by this applicant and are expected to be. There is reference to doing the work at periods of average or low water, and there was no indication that this could not be accomplished by the applicant. On April 19, 1988 the actual permit was rendered and had attached letters of April 18, 1988 advising the City that it could contest the permit terms and the fact that others might promote objections to the permit and water quality certification. In fact, a number of land owners in the general vicinity of the project have contested this permit application leading to the present hearing. The petition and challenge to the intention to grant a permit was timely made. The Petitioners are Mr. and Mrs. John Jordan, Mr. and Mrs. Ian Ablett, Mr. Keith Kelly, Ms. Dorothy Brown, Mr. Hal Moyle, Ms. Holly Baker, Ms. Beatrice Diomont, J. H. Cater, Mr. and Mrs. W. Reed, Mr. and Mrs. H. Carrell, Mr. Harvey Jay, Ms. K. C. Walsh and Donald Braddock. Only Mr. and Mrs. Ablett, Mr. Kelly, and the Carrell's attended the hearing and established their standing to challenge the intended agency action. Moreover, the nature of their challenge as set forth in their petition has been restricted by a ruling which struck reference to the alleged influence which this project has on property values associated with a lack of sensitivity for aesthetics in exchanging the wooden bridge for a concrete pile bridge. Otherwise, the Petitioners through the presentation at hearing spoke in terms of shoaling at the site as a matter of their concern. This problem is not one which is attributable to the City and its activities, it is related to commercial activities upstream from the project site. As described, if anything, the project will alleviate those problems to some extent. Additional reasons which the Petitioners advanced in opposition concern the belief that they did not need a new bridge, that the bridge was too wide and that they did not need sidewalks and guardrails. Notwithstanding their perceptions, the overall public needs would favor the replacement of the bridge to include wider lanes and sidewalks for safe pedestrian passage. Again, at present, there are no sidewalks with the existing bridge. The expression of opposition by the Petitioners beyond the reference to the shoaling problem and the effects on water levels is not a matter of environmental concern contemplated by the permit application review process under consideration here. On May 13, 1988, the Department of the Army issued a permit for this project, a copy of which may be found as City's Exhibit 4 admitted into evidence. In addition, the Coast Guard has no opposition to this project and has said as much in its correspondence of May 2, 1988, a copy of which may be found as City's Exhibit 5 admitted into evidence. The immediate and long term impacts of this project are not violative of applicable state water quality standards, in that reasonable assurances have been given that those standards will not be exceeded. This project is not contrary to the public interest. It is not adverse to public health, safety or welfare or property of others. The project will not adversely affect the conservation of fish and wildlife, to include endangered or threatened species or other habitats. The project will not adversely affect navigation or the flow of water which will cause harmful erosion or shoaling. The project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The project is permanent in nature but over time it will not have adverse impacts on the environment. Considering the current conditions and diminished value of environmental functions being performed by the area, they are not particularly significant at present and the project will not change that posture, in fact it may improve the circumstance. Specifically, at present no endangered or threatened species are found within the creek. There had been some wildlife activity, but continuing problems with silting or shoaling have occurred since the homeowners in the area dredged the creek bottom, and wildlife has decreased as a result. This relates to the upstream activities which continue to promote problems in the creek bottom. On the subject of navigation, limited navigation is available by small boats or canoes at present, and the elevations of the replacement bridge are such as to not interfere with that activity.
