Findings Of Fact The Parties H. B. Walker, Inc. is in the business of demolition, excavation and land clearing. The company transports heavy equipment to and from job sites and transports debris from job sites and is a commercial motor carrier. The company maintains a terminal for its motor vehicles at 1913 Bruton Boulevard, Orlando, Florida. All commercial motor carriers operating over the public highways in Florida are subject to certain federal regulations governing driver and vehicle safety and record-keeping. Those federal regulations are adopted by reference in the Florida Statutes, which statutes are amended from time to time to address a later version of the federal regulations. The DOT has the authority and responsibility to enforce those safety and record-keeping requirements, which it does, in part, through terminal audits, sometimes called "compliance reviews". The Process On April 18, 1995, after conferring with his supervisor, Officer Terron Lindsey, a seasoned agency motor carrier compliance officer, visited H. B. Walker's terminal and conducted a review of Walker's records. As a result of the review, Officer Lindsey found multiple violations of the record-keeping requirements of 49 CFR, parts 391 and 396. He advised Walker's personnel that he would return in 60 - 90 days and no penalty would be imposed if the violations were corrected. On a follow-up audit on July 12 and 13, 1995, Officer Lindsey found that some, but not all corrections were made. On August 1, 1995, the agency issued to H. B. Walker a Safety Report and Field Receipt stating the violations and citations to the federal rules and assessing penalties in the total amount of $4,000. Officer Lindsey delivered the Safety Report and Field Receipt to Walker's terminal and was told that the penalty would not be paid. Walker did not pay the $4,000, but protested the agency's findings to the Commercial Motor Carrier Board (Board). By 1995 the DOT had some brief experience with conducting terminal audits and assessing penalties for record- keeping violations, but this was the first time that a motor carrier had refused to pay the penalty prior to presenting its protest to the Board. Captain E. A. Brown, Officer Lindsey's supervisor, called the Tallahassee headquarters of DOT's motor carrier compliance office and the DOT's legal office to find out how to proceed. As motor carriers are aware, DOT exercises authority in road-side safety inspections to require immediate payment of any penalty or to impound the vehicle when a compliance officer issues a citation. Based on DOT's existing rules, Chapter 18 of the Motor Carrier Compliance Manual and experience with road-side safety enforcement, Colonel McPherson advised Captain Brown that the agency had authority to impound an H. B. Walker vehicle. After receiving directions from his headquarters, Captain Brown wrote letters to H. B. Walker and orally informed Walker's employee, John Valois, that if the penalty were not paid, a vehicle would be held, consistent with past enforcement actions on non-payment of penalties. On August 28, 1995, at the direction of Captain Brown, Officer Rick Hunter detained one of Walker's vehicles and impounded it at a DOT maintenance yard. In the meantime, after the Board received H. B. Walker's request for a hearing on the violations, the Board's Executive Secretary, Elyse Kennedy, telephoned Walker's counsel and told him that the Board could not hear his case until the penalties were paid, or a bond was posted. Later, after confirming with DOT legal staff, Ms. Kennedy sent a letter advising Walker's counsel that the Board could schedule and hear the case, as the impoundment of a vehicle was equivalent to payment of the penalties or the bond. H. B. Walker's case was scheduled with consultation with Walker's attorney. On the appointed date, when no representative from H. B. Walker appeared, the Board considered written material submitted by Walker's attorney and testimony from Officer Lindsey. The Board notified H. B. Walker of its denial of relief in a letter dated September 15, 199[5]. The letter states in pertinent part: Dear Sir: Pursuant to Section 316.545, Florida Statutes, the Commercial Motor Vehicle Review Board at its meeting of July 13, 199[5], carefully reviewed all of the information placed before it and determined that a refund was not appropriate in this case for the following reason. After hearing testimony of Officer Lindsey and Captain E. A. Brown, the Board felt that H. B. Walker, Inc. was not in compliance with CFR 391.51; CFR 391.43; CFR 391.103 and CFR 396.3. Pursuant to Rule 14A-1.012, Florida Administrative Code, you are entitled to request a rehearing in this matter by filing such a request with the Executive Secretary within ten (10) days of the receipt of this letter. Pursuant to Chapter 120, Florida Statutes, you have the right to either a formal or an informal hearing. A formal hearing will be granted where disputed issues of material fact exist; in other words, where you disagree with the specific facts contained in this letter upon which the Commercial Motor Vehicle Review Board bases its intent to deny your request for refund. All requests for either type of hearing must be in writing. * * * You are hereby notified that the conclusion contained in this letter shall become final with 21 days of receipt of this letter, unless, you file a written request for an informal or formal Administrative hearing pursuant to Section 120.57, Florida Statutes, with the Clerk of Agency Proceedings within 21 days. * * * Walker's timely request for a formal hearing tolled the Board's conclusion. The 1995 Rules In 1995, at the time of the H. B. Walker terminal audit and ensuing Board meeting, rules 14A-1.004 and 14A-1.007, Florida Administrative Code, provided, in pertinent part: 14A-1.004 Meetings . . . Only penalties which have been paid or for which a Section 316.545 bond has been posted, will be considered by the Review Board. 14A-1.007 Timely Written Request for Meeting Any person who is aggrieved by the imposition of a civil penalty imposed upon the provisions of section 316.545 or 316.3025, Florida Statutes, after payment of the penalty, or posting a section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office in writing within 60 days of the date of the penalty notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested . . . . At the relevant period, rules 14-87.011(1) and 14-87.002 provided, in pertinent part: 14-87.011 Definitions * * * "Citation" means: A Load Report and Field Receipt issued to the owner or driver of a commercial motor vehicle for violation of weight and vehicle registration laws: or A Safety Report and Field Receipt issued to the owner or driver of a commercial motor vehicle for violation of safety laws and regulations and permit violations; or The penalty portion of an I. R. P. Trip Permit & Temporary Fuel Use Permit issued to the owner or driver of a commercial motor vehicle in violation of the fuel use tax requirements contained in Chapter 207, Florida Statutes. 14-87.002 Penalties and Fees Due Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. . . The 1996 Amendments On June 7, 1996, DOT published notices of rule-making, proposing to amend various provisions of rule chapters 14-87, 14-108 and 14A-1. On July 16, 1996, the agency filed the amendments to Chapter 14A-1 for adoption, and those amendments became effective August 5, 1996. The amendments to Chapters 14-87 and 14-108, Florida Administrative Code, became effective in September 1996. The cumulative effect of these amendments is to distinguish between the penalty process for road violations and the process for violations found during a terminal audit/compliance review. The amendments provide that a commercial motor carrier who has been assessed penalties for violations found during a terminal audit may obtain a Review Board hearing prior to payment or posting a bond. The amendments also distinguish between a "notice of non- compliance" issued after a terminal audit to advise the carrier of violations and the penalties that will be assessed if the violations are not corrected, and a "notice of violation" which identifies the violations and assesses penalties. DOT's amendments to chapter 14-87, Florida Administrative Code, are, in relevant part, as follows: (Underlined material has been added, material struck through has been deleted.) 14-87.0011 Definitions * * * "Penalty" means a monetary amount prescribed by statute or Department rule as a civil penalty to be assessed administratively for a violation of a commercial motor vehicle law pursuant to the issuance of a citation or a notice of violation. * * * "Notice of Violation" means a notice of violation as defined by Rule 14-108.002(5). * * * 14-87.002 Penalties and Fees Due; Detaining and Impounding Motor Vehicles When Citation or Permit Issued Penalties and fees imposed upon the operations of commercial motor vehicles are due and payable upon the issuance of a citation or a permit. Penalties due under chapter 14-108 are due in accordance rule 14-108.004. All penalties and fees not guaranteed by a Surety Bond must be paid to the officer or inspector issuing the citation or permit or detaining the vehicle for nonpayment of penalties prescribed under rule 14-108.005 prior to further operation of the affected commercial motor vehicle on the roads of this State. Payment may be in cash, by cashier's check or by money order. In the event that payment is not made when payment is due, the motor vehicle will be impounded in accordance with sections 316.3025 or 316.545, Florida Statutes. When a Surety Bond has been properly filed and accepted by the Department, the vehicle will be released upon presenting written evidence of the surety bond to the officer or inspector detaining the vehicle the citation or permit will be issued to the owner or driver of the vehicle, and payment must be remitted to the officer or inspector who issued the citation or permit within ten working days of the release of the vehicle date of issuance. Company checks may be accepted when a proper Surety Bond is on file. In the event that payment is not made within ten working days of release of the vehicle, the Department will take action to recover the penalty amount from the surety bond. Motor vehicles impounded in accordance with this rule will be released upon payment of the penalty or the posting of a bond pursuant to Section 316.545, Florida Statutes, or upon a determination by the Commercial Motor Carrier Review Board to cancel or revoke the penalty or upon the issuance of a Department order setting aside the penalty as the result of a proceeding held pursuant to section 120.57, Florida Statutes. Motor vehicles released as a result of the posting of a bond under section 316.545, Florida Statutes, remain subject to the lien imposed by that statute. The Department's amendments to chapter 14-108, Florida Administrative Code, are, in relevant part, as follows: 14-108.002 Definitions * * * "Notice of Noncompliance" means a notice issued to a motor carrier that advises the motor carrier of violations found during a terminal audit/compliance review and identifies the penalties that will be assessed if the violations are not corrected within 60 days of receipt of the notice. "Notice of Violation" means a written notice which identifies violations of safety laws and regulations found during the conduct of a terminal audit/compliance review and assesses penalties pursuant to these rules. Such a notice will be issued after violations are found and penalties are to be assessed under this Chapter. (5) "Penalty" means a monetary amount prescribed by statute as a civil penalty to be assessed administratively for violation(s) of safety laws and regulations found during the conduct of a terminal audit/compliance review. (6) "Terminal Audit" or "Compliance Review" means an onsite investigation at a motor carrier's terminal or office of property carrier or passenger carrier records such a driver's hours of service, maintenance and inspection, driver qualification, commercial drivers license requirements, financial responsibility, accidents and other safety and business records to determine compliance with the safety laws and regulation. The investiga- tion will compliance review may result in the initiation of an enforcement action to include the assessment of the applicable penalty(ies) prescribed by statute and this rule chapter. 14-108.003 Applicability; Compliance Required * * * Any person or motor carrier who operates or causes or permits nonpublic- sector buses to be operated on any road, street, or highway open to travel by the public in the transportation of passengers shall be in compliance with the applicable safety laws and regulations contained in section 316.70, Florida Statutes, and Title 49 C.F.R. Parts 382, 385 and 390 through 397 301, 393, 394 and 396. Any person or motor carrier found to be in violation of these rules during the conduct of a terminal audit or compliance review shall be subject to the penalties herein described. The penalties prescribed by rule 14-108.105 will be waived and a notice of violation will not be issued if, as a result of the first terminal audit or compliance review conducted of a Motor Carrier, the Motor Carrier corrects the described violations within 60 days after receipt of a written notice of noncompliance. Penalties for the following violations will not be waived under the above provision, even if they are found during the first terminal audit or compliance review and are corrected immediately. Failure to comply with controlled substance testing requirements Exceeding driver hours of service. Violations involving hazardous materials. Lack of valid commercial driver's licenses, including revoked, suspended or cancelled licenses. 14-108.004 Administration: Enforcement. All penalties imposed and collected in accordance with these rules shall be paid to the treasurer, who shall credit the total amount collected to the State Trans- portation Trust Fund in accordance with section 316.3025(5)(b), Florida Statutes. Penalties assessed as a result of a terminal audit are due and shall be paid no later than ten working days after receipt of the notice of violation, unless a timely appli- cation is made to the Commercial Motor Vehicle Review Board under rule 14A-1.007, in which case the penalty (or the remaining part thereof) is due and shall be paid no later than ten working days after receipt of a written decision by the Review Board sustaining the penalty in whole or in part. Whenever any person or motor carrier violates the provisions of these rules and becomes indebted to the State because of such violation(s) and refuses to pay the appropriate penalty, the penalty becomes a lien upon the property including the motor vehicles of such person or motor carrier and may be foreclosed by the State in a civil action in any court of this state as prescribed by section 316.3025(4), Florida Statutes. Motor vehicles of the person or motor carrier will be detained and impounded for nonpayment in accordance with Rule 14-87.002. The adopted amendments to Chapter 14A-1, Florida Administrative Code, are, in relevant part, as follows: 14A-1.004 Meetings The Review Board shall sit as an admin- istrative body in equity to consider testimony or written documents in mitigation, extenuation, modification, cancellation, revocation, or maintenance of any penalty or penalties imposed pursuant to 316.540, 316.545, or 316.3025, Florida Statutes. Only penalties which have been paid or for which a section 316.545 bond has been posted, will be considered by the Review Board. However, this provision shall not prevent the owner of a motor vehicle that has been impounded for nonpayment from receiving a Review Board hearing. Further, as provided in Rule 14-108.004, a motor carrier may obtain a Review Board hearing on penalties assessed as a result of a terminal audit prior to payment or posting of a bond. Review Board meetings may be scheduled as often as determined necessary, based on a sufficient number of penalties being avail- able for review to justify the expense of hold a meeting. The Review Board shall meet not less than six times per year. Location of meetings shall be determined by the Review Board. Upon timely written request, cases involving Florida based persons will be scheduled at the next meeting held in their geographic area. However, cases involving requests for Review Board conside- ration of unpaid penalties imposed for violations found during a terminal audit will be scheduled for the next meeting regardless of location. Upon timely written request, cases involving non-Florida based persons will be scheduled at the next meeting of the Review Board. Persons may request the scheduling of their case at a specific city at which the Review Board meets. Such requests must be in writing to the Commercial Motor Vehicle Review Board, Haydon Burns Building, 605 Suwannee Street, Tallahassee, Florida 32399-0450. * * * 14A-1.007 Timely Written Request for Meeting Any person who is aggrieved by the imposition of a civil penalty imposed upon the pro- visions of Section 316.545 or 316.3025, Florida Statutes upon compliance with Rule 14A-1.004, after payment of the penalty, or posting a Section 316.545, Florida Statutes, bond may request consideration by the Review Board by notifying the Review Board office in writing within 60 days of the date of the Penalty Notice (Load and Field Receipt Date) that the penalty is being protested and a Review Board consideration is requested. The request shall set forth in detail the basis of the protest and all matters to be considered so that the Review Board can be prepared to discuss the issue at the meeting if the protestor does not appear. The request must be received within 60 days. A written request for Review Board consideration of a penalty imposed for violations found during a terminal audit must be submitted and received within ten working days after receipt of the notice of violation in order to be considered timely and such written request must be submitted via hand-delivery or certified mail. 14A-1.008 Appearances Those persons, firms or corporations who have been assessed a penalty for violations of Section 316.540, 316.545, or 316.3025, Florida Statutes, and have complied with the requirements of Rules 14A-1.004 and 14A-1.007 either have paid the penalty or posted a Section 316.545, Florida Statutes, bond shall appear in person, through an authorized representative or by legal counsel. Each person shall be given ample time to explain the reasons for seeking relief. The Review Board, at its discretion, may inquire into any testimony presented at the meeting or written statements presented. Testimony also may be received from the agency that imposed the penalty. Although Mr. Walker testified that he never received notice of rule- making to amend Chapter 14A-1, Florida Administrative Code, he did not present evidence that he requested notice. Nor did he argue that the amendments were otherwise invalid. Chapter 18, Motor Carrier Compliance Operations Manual As stated in its first paragraph, Chapter 18, "Collection of Civil Penalties", within the Motor Carrier Compliance Operations Manual, the purpose of Chapter 18 is, to establish a uniform procedure for the collection of overweight penalties and other commercial vehicle penalties assessed pursuant to Florida Statutes and, Department Rules. (DOT Exhibit Number13) Like the rules of DOT in 1995, the Chapter 18 procedures provided for immediate collection of a penalty, or posting a bond or impoundment of a vehicle at the time enforcement action is taken. Although agency personnel invoked Chapter 18 as part of their basis for seeking immediate payment by H. B. Walker, the provisions of the Chapter nowhere specifically mention penalties assessed as the result of terminal audits. On April 15, 1996, the agency issued Enforcement Bulletin 18-001, to be inserted in Chapter 18 describing procedures for imposition and collection of civil penalties associated with terminal audits. Those procedures are the same as the procedures described in the rule amendments addressed in paragraphs 18 through 20, above.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, certified by Petitioner as a law enforcement officer. Until his retirement in January 2008, Respondent served in excess of 20 years as a sworn police officer in the Tampa Police Department (TPD). At the time of his retirement, he was a corporal. At all times material to the instant case, including January 4, 2007, in addition to working full-time as a TPD police officer, Respondent owned an automotive parts and service business (Adkins Enterprises) and the seven-acre property at 4709 East Hillsborough Avenue in Tampa (including the improvements thereon) where the business was located. Until April 2005, when its Florida Department of Highway Safety and Motor Vehicles (HSMV)-issued motor vehicle dealer's license expired, Adkins Enterprises also sold used vehicles at this location. The business had approximately 25 employees. Respondent left the day-to-day operations of the business to his managerial employees. He would stop by when he was off-duty to check on how things were going and to help out, particularly with the paperwork. At a meeting held in 2004 (2004 Meeting), TPD Captain Robert Lovering introduced Respondent to three brothers-- Roynauth "Sham" Sahdeo (Sham), Seewchand "Blacks" Sahdeo (Blacks), and Deonauth "Prim" Sahdeo (Prim)--all of whom worked at a business on 15th Street in Tampa (S & S Auto) which did automotive repairs and paint and body work, as well as provided towing services.2 Respondent understood Sham to be the "main brother," under whom the other two brothers worked. Sham, in fact, at that time, did own the business (which, unlike Adkins Enterprises, was not a Florida-licensed motor vehicle dealer). Blacks and Prim did not then have any ownership interest in S & S Auto. It was verbally agreed, at the 2004 Meeting, that Adkins Enterprises and S & S Auto would go into the auto parts and scrap metal business together, with the auto parts and scrap metal to be sold by the joint venture coming from vehicles purchased at motor vehicle auctions using Adkins Enterprises' dealer license.3 (Section 320.27, Florida Statutes, provided then, as it still does, that only licensed dealers could purchase vehicles at these auctions.) Respondent also agreed to rent out space to S & S Auto at Adkins Enterprises' 4709 East Hillsborough Avenue location (Adkins' Location). Sometime in or around 2005, Sham sold his interest in S & S Auto to his two brothers, Blacks and Prim. As far as Respondent understood, however, Sham continued to act on behalf of S & S Auto.4 Also in or around 2005, S & S Auto applied for and obtained a motor vehicle dealer license from HSMV. Because Adkins Enterprises no longer had its dealer license (it having expired in April 2005), S & S Auto's dealer license was used to purchase (at auction), not only the vehicles it sold as a licensed motor vehicle dealer, but also the vehicles from which the parts and scrap metal for the joint venture between Adkins Enterprises and S & S Auto were obtained. After they were purchased at auction, the vehicles were transported to Adkins' Location on a tow truck operated by Blacks. Space was set aside at Adkins' Location for S & S Auto to conduct motor vehicle sales operations. Insofar as Respondent knew, Dale Marler was in charge of these operations. Sham helped Mr. Marler out, but most of Sham's time at Adkins' Location (where he had a regular presence) was devoted to the auto parts/scrap metal joint venture in which Adkins Enterprises and S & S Auto were participants. (It was at Adkins' Location where the vehicles purchased for the joint venture were stripped and crushed, and the salvaged auto parts were sold.) When he had the time, as a favor, Respondent would take tag and title paperwork to the HSMV local office for Mr. Marler and/or Sham. As of January 4, 2007, Sham and Mr. Marler were still working out of Adkins' Location and engaging in the business activities described above. On that day, Respondent agreed, at Sham's request, to go to the local HSMV office and purchase temporary tags for S & S Auto's motor vehicle sales operations at Adkins' Location. In addition to the money to make the purchase, Sham provided Respondent with S & S Auto's HSMV- assigned Personal Identification Number (PIN), which Respondent had to give to the HSMV clerk in order to initiate the transaction. Respondent went to the local HSMV office, as Sham had requested, later that same day (January 4, 2007). He told the clerk that he was there to purchase 25 temporary tags for S & S Auto, and he gave her S & S Auto's PIN. The clerk inputted the information Respondent had provided her into the HSMV computer system and produced a completed HSMV Form 83090, which represented S & S Auto's application for 25 temporary tags (S & S Auto's Application). The clerk printed out copies of S & S Auto's Application, and Respondent signed the "agency copy" on the "Authorized Representative for Dealership" signature line. At the clerk's request, he showed her his driver's license, and she wrote down his driver's license number next to his signature on the application. Respondent left the office with 25 temporary tags (numbered Q415821 through Q415845), for which he paid $53.00. Respondent did not knowingly provide any false or misleading information in obtaining these tags. He honestly believed that he was acting as the "Authorized Representative" of S & S Auto in this transaction, as he represented by placing his signature on the "agency copy" of S & S Auto's Application. When he returned to Adkins' Location, Respondent put the 25 temporary tags that had been purchased at the local HSMV office in a file for Mr. Marler and Sham to use. He had nothing further to do with the tags.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of May, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2011.
The Issue Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess a penalty of $1,250 pursuant to Section 316.545, Florida Statutes, regulating operation of a commercial vehicle on a highway in the State of Florida?
Findings Of Fact On June 27, 1991, Sergeant Tommy Jackson, observed a dump truck traveling eastward on 65C in Gadsden County, Florida. The Sergeant stopped the truck which did not have a tag. The driver of the truck, which did not have a name on it, was asked for the registration. The driver could not produce the registration. Sergeant Jackson called Officer Bennie Lee York, Jr., to come assist him in weighing the dump truck on portable scales. The vehicle weighed 60,000 pounds. The vehicle's serial number was checked through the Florida Division of Motor Vehicle's computer which determined the vehicle had no Florida tag or registration. Sergeant Jackson and Officer York went to the job site to which the truck was bound to verify the tag and registration of the vehicle. A Georgia registration and incorrect tag was presented. Sergeant Jackson went to his nearby home to call and verify the registration with the Georgia authorities in Atlanta, Georgia. Georgia reported no record of a tag for the vehicle in the State of Georgia. Sergeant Jackson returned to the job site and advised the job foreman that the State of Georgia did not report the vehicle as being registered in Georgia. About two hours later, Mr. Kinard of General Development brought a registration that matched the truck serial number. However, it was for a non-apportioned Georgia commercial tag. Officer York advised Mr. Kinard that an apportioned International Registration Plan tag or a Florida Commercial registration was required to operate a commercial vehicle in Florida. Officer York issued a load report to General Development assessing a penalty for being 25,000 pounds over the legal limit in the State of Florida of 35,000 for a commercial vehicle. The amount of the penalty was $1,250.00, or 5 cents for every pound of vehicle weight over 35,000 pounds. The Respondent admitted the violation, however, the Respondent's representative indicated in his plea for mitigation that the driver had taken the truck without authorization. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finalizing assessment of the $1,250.00 penalty assessed against General Development pursuant to Section 316.545, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of February 1992. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February 1992. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Campbell, Secretary General Development Post Office Box 654 Quincy, Florida 32351 Ben G. Watts Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 ATTN: Eleanor F. Turner Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Barbara J. Staros, an Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Settlement Stipulation| and Motion to Relinquish Jurisdiction, a copy of which is attached and incorporated by reference in this order. i The Department hereby adopts the Order Closing File as its Final Order in this Inatter. Accordingly it is FOUND and ORDERED as follows: 1. That Respondent shall pay an administrative fine in the amount $f two thousand a dollars ($2,000.00). The fine shal! be paid in four monthly payments. The first payment of i $500.00 to be paid on or before April 30, 2010. The second payment of $500.00 to be paid on or before May 30, 2010. The third payment of $500.00 to be paid on or before J unk 30, 2010. The fourth and final payment of $500.00 to be paid on or before July 30, 2010. All Hayments are to | be made by returning a copy of the order with payment to: Filed March 26, 2010 9:15 AM Division of Administrative Hearings. i i i 1 | Department of Highway Safety and Motor Vehi¢les Office of the Hearing Officer Division of Motor Vehicles ; 2900 Apalachee Parkway, Room A308, MS-61 | Tallahassee, Florida 32399-0600 ; 2. If Respondent pays each installment of the amount specified in paragraph one above within the specified time the Department will impose no further penalties or sanctions against Respondent. However, if Respondent fails to pay any installment as specified in haragraph one, on the day following the due date of the installment, Respondent’s motor vehicle dedler license will be automatically suspended and Respondent will cease to do business as a motor vehicle dealer. 3. If, after suspension Respondent pays the past due installment before the due date of the next installment, its motor vehicle dealer license will immediately be reinstated without further penalties or sanctions. However, if Respondent fails to pay the past due installment by the due date of the next installment, the Department will revoke Respondent’s motor vehicle in license. 4. If the Department suspends or revokes Respondent’s motor veil dealer license for | non-payment as specified in paragraphs two and three said suspension or revocatibn shall be without recourse to the Respondent and Respondent hereby expressly waives any|right to appeal or otherwise contest the suspension and OY. DONE AND ORDERED this a 772 day of March 2010, at Tallahassee, Leon County, Florida. Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety a Motor Vehicles Neil Kirkman Building, Room Bajo, MS-60 Tallahassee, Florida 32399-0600 Filed in the official records of the Division of Motor Vehicles this ‘day of March 2010. Nalini Vinayak, Dealer ‘Administrator 2 if | ; NOTICE OF APPEAL RIGHTS | Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court withi thirty days of the filing date of this order as set out above, pursuant to Rule 9.110, Rules of App¢llate Procedure. CAF:jde Copies furnished: Deborah Osman Regional Administrator Dealer License Section i | | t | 1 I i i Joel Sharp, President Drive it Away Auto Sales, Inc. | 2527 West Tennessee Street i Tallahassee, Florida 32304 FALR | Post Office Box 385 Gainesville, Florida 32602 | i i i | | i i
The Issue Did the Respondent operate an unregistered commercial truck in Florida? Did the Petitioner correctly assess penalties of $4,101 pursuant to Section 316.545, Florida Statutes, regulating operation of commercial vehicles on a highway in the State of Florida?
Findings Of Fact On April 3, 1992, Beverly Griffin inspected and weighed two commercial vehicles owned and operated by the Respondent at the Sneads, Florida weigh station. The drivers produced the vehicles' Wisconsin apportioned registration, but the IRP permits and trip tickets were expired. The vehicles were weighed. One weighed 76,000 pounds, and the other weighed 76,020 pounds. The Respondent admitted the violation; however, the Respondent's representative indicated in his plea of mitigation that the company had obtained required permits and brought its equipment into the state on the trucks; however, it had taken longer than expected to complete the work with the machinery the trucks were carrying, and the permits had expired before the trucks and equipment could leave the state. The Department levied a fined in the amount of $4,101, at 5 cents/ pound for the overweight trucks plus $80 for new trip tickets, $90 for temporary fuel use permits, and $100 penalty for not having current fuel use permits. The Respondent paid the penalties. The statutes governing the operation of motor vehicles provide for strict liability against the owner of a vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered finalizing assessment of the $4,351 in penalties against the Respondent pursuant to Section 316.545, Florida Statutes. DONE and ENTERED this 17th day of November, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Gary Pomeroy, Vice President The Big Red Machinery Movers, Inc. Post Office Box 274 Butler, WI 53007 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458
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
Conclusions This matter came before the Department for entry of a Final Order pursuant to an order closing the file of the Division of Administrative Hearings. The record reflects that the parties have settled their dispute and entered into a Settlement Stipulation, which Settlement Stipulation is hereby adopted by reference. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: 1. Respondent has admitted the allegations of the administrative complaint in this matter. 2. Respondent has agreed to pay and has paid a civil fine of $2,000.00 by certified cashier’s check, receipt of which is acknowledged by the Department. 3. Each party will bear its own costs and attorney fees. 4. In order to prevent similar violations occurring in the future, Respondent shall abide by the following in operating its dealership: Respondent shall refrain from advertisements utilizing descriptions for vehicle condition such as mint condition, flawless, perfect and any other statements that may be deceptive and unfair if it is likely to mislead a consumer who is acting reasonably under the circumstances. Failure to abide by these procedures will constitute grounds for suspending or revoking Respondent’s license or imposing 4... fine. DONE AND ORDERED this YA day of July, 2009, in Tallahassee, Leon County, Florida. ) L A. FORD, Dire Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division 9% Motor Vehicles this £27 day of July, 2009. Copies furnished: Michael J. Alderman, Esquire Senior Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 Craig Hallman Executive Auto Leasing of South Florida, Inc. 2912 South Ocean Bivd. Highland Beach, Florida 33431 Errol H. Powell _Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Diane Buck Regional Administrator, DMV Region IX William Camper Hearing Officer Division of Motor Vehicles Billy Rankin Chief, Bureau of Field Operations Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
