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
Conclusions This matter came before the Department for entry of a Final Order pursuant to submission of an Order Closing File by Lawrence P. Stevenson, an Administrative Law Judge of the Division of Administrative Hearings,. The record reflects that the parties have settled their dispute and entered into a Settlement Stipulation. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: 1. On or about May 6, 2011, Respondent paid a civil fine of $500.00 by certified cashier’s check. 2. The Settlement Stipulation of Petitioner and Respondent is adopted and incorporated into this Final Order of the Department in accordance with its terms. Respondent shall comply with all terms and conditions herein. Filed May 24, 2011 2:46 PM Division of Administrative Hearings DONE AND ORDERED this at day of May, 2011, in Tallahassee, Leon County, Florida. Copies furnished: Carl Broglin Post Office Box 3683 Ocala, Florida 34478 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Dwight Davis, Bureau Chief Division of Motor Vehicles Wayne Jordan, Program Manager License Installer Program Ubld . Lambert, Interim Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this aeeaay of May, 2011. Nalini Vinayak, Dealer weconse Administrator
The Issue The issues concern the question of whether the Petitioner is entitled to impose a $1,660.00 assessment against Respondent for operating a commercial vehicle in Florida without appropriate registration.
Findings Of Fact On October 21, 1991, Respondent's commercial vehicle was inspected at the Petitioner's Yulee weight station located on Interstate 95 in Nassau County, Florida. It was discovered that the motor vehicle did not have a Florida registration. Furthermore, the South Carolina registration for the vehicle was not apportioned to allow operation in Florida. As a consequence a penalty was assessed for operating the commercial vehicle in Florida without benefit of an appropriate registration. The actual amount of penalty was $1,660.00 which is reflective of the gross weight of 68,200 pounds at a price of .05 per pound of the amount in excess of 35,000 pounds. Respondent paid the $1,660.00 fine plus the $30 single trip registration fee. This payment was rendered on the date that the commercial vehicle was stopped.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered finding that the $1,660.00 penalty was an appropriate amount to be assessed against the Respondent on October 21, 1991, as envisioned by Section 316.545(2)(b), Florida Statutes, and that the request for refund of that amount be rejected. DONE and ENTERED this 23rd day of June, 1992, in Tallahassee, Florida. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 GayCille Swisher Isley Iron & Metal Company 1691 Lost Mountain Road Powder Springs, GA 30073 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1992.
Findings Of Fact The facts reveal that Jose Gonzalez, a driver for the Respondent, operating one of Respondent's tractor/trailer pieces of Respondent, went to a rock company located in Hollywood, Florida, on February 13, 1978, for the purpose of picking up a load of "P" rock. This rock was purchased from Miramar Lakes, d/b/a Miramar Rock on that date and the driver, Gonzalez, was given a weight ticket. The weight ticket from Miramar Rock reflected a gross weight of 72,360 pounds, which is the total of the equipment and load. (The scales at Miramar peck used to weigh the Respondent's equipment and load had been certified by the Petitioner to be accurate on June 7, 1977, and again on April 11, 1978.) The weather on February 13, 1978, was clear and the purchase, loading and weighing done on the subject equipment was without incident, until the driver attempted to pull away from the weight scales. At that moment the universal joint and yoke snapped and this caused the vehicle to be inoperable. Gonzalez left the truck at the Miramar Rock Company. At that point, the load was covered by a canvas and the trailer was not seeping or leaking water from the rock aggregate. Later, on February 13, 1978, a mechanic employed by the Respondent came to effect repairs to the vehicle, but due to the unavailability of certain parts necessary to complete the repairs, did not finish the work until February 14, 1978. When the repairs had been completed on that date, the driver, Gonzalez, removed the truck from the Miramar Rock compound and entered the roads of Broward County, Florida. At around 9:15 a.m. on February 14, 1978, Gonzalez arrived at the intersection of Hollywood Boulevard and Flamingo Road in Broward County, Florida, eastbound on Hollywood Boulevard. At that intersection, officers employed by the Florida Highway Patrol, Weights Division, intercepted the Des Rocher truck and caused the vehicle to stop. After the stop the equipment being operated at that time was established to be a vehicle measuring between 37 feet to 38 feet from the front axle to the rear axle, and the peak of the rock load was located in the center rear portion of the trailer. Officer Wilkerson of the Florida Highway Patrol observed water dripping out of the rear tailgate after making the stop. Gonzalez was asked to produce a weight ticket and in response to this request produced the weight ticket given him by Miramar Rock on February 13, 1978. Officer Wilkerson commented that this ticket was from the day before and that a ticket bearing the current date was required. Gonzalez was then told that the truck would be weighed with the method for weighing the truck being by two portable scales. Officer Wilkerson weighed one side of the truck and Officer Herron went to the other side of the truck. Wilkerson weighed the steering axle on his side of the truck; the drive axle on his side of the truck, and two tires on the rear tandem axles on his side of the truck. It is not known what Officer Herron did, if anything, in effecting the purposes of this inspection and weigh-in, because Officer Herron did not appear at the hearing in this cause and was not seen by Officer Wilkerson in conducting his inspection activities, if any. Therefore, the total weight of the truck as ascertained from the inspection ostensibly conducted by these officers was not shown by competent evidence. However, it was demonstrated through the testimony in this hearing that the plan which the officers had for making the roadside inspections was one which called for basically stopping all trucks of the category of aggregate haulers that were eastbound through the intersection on Hollywood Boulevard, to the exclusion of pickup trucks and moving vans. After stopping the former category of trucks, some were weighed and others were not. As a result of the stop, Gonzalez was ticketed for a weight violation and that ticket was in the amount of $136.45 as an assessed penalty. Gonzalez then took the truck back to the Des Rocher installation which contained a set of scales and between 10:15 a.m. and 10:30 a.m. the truck was weighed and shown to be 35.64 tons, or 71,280 pounds as the gross weight including the equipment and load. (The scales that were utilized had been certified by the Petitioner on June 7, 1977, and again on May 8, 1978.)
The Issue The only issue remaining in this case is the extent to which the Petitioner, the Department of Transportation (DOT), should penalize the Respondent, Keystone Excavators, Inc. (Keystone), for operating a commercial motor vehicle with an expired vehicle registration and for exceeding the maximum legal weight of 35,000 pounds allowed under Section 316.545, Fla. Stat. (1987).
Findings Of Fact On July 8, 1987, one of Keystone's commercial motor vehicles was operating on Interstate I-4 near Plant City, Hillsborough County, Florida, with a registration that expired on May 31, 1987. According to the DOT scales, the weight of the vehicle, loaded, was 82,520 pounds. The DOT's Form 509-13, Revised 1/86, 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 DOT interprets and applies the requirement of Section 316.545(2)(a), Fla. Stat. (1987), 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. When Keystone last registered the vehicle in question, it obtained a six-month registration instead of an annual registration. As a result, the registration expired May 31, 1987. For some reason, the sticker stating the month of expiration of the registration was not put on the vehicle's registration tag. Through inadvertent oversight, Keystone failed to renew the registration on the vehicle. When the DOT discovered the violation, it fined Keystone $2,376, calculated as 5 cents for each pound the vehicle weighed over 35,000 pounds. Keystone paid the fine under protest, taking the position that the fine was excessive under the circumstances. On the same day, after the DOT citation, Keystone paid a late fee and renewed the vehicle's registration for the period from May 31, 1987, forward. Keystone's evidence proved that Keystone did not intentionally violate the vehicle registration laws in this instance. Keystone does not intentionally violate the applicable laws and attempt to avoid or escape detection of violations. Nor does Keystone conduct business in a reckless or careless manner with respect to compliance with the applicable laws and treat penalties for detected violations as a cost of doing business. Notswithstanding this violation, Keystone generally has a good record for operating safe and properly licensed and permitted vehicles. The violation in this case resulted from an isolated case of inadvertent oversight. Keystone requested that the Commercial Motor Vehicle Review Board (the Review Board) drop or reduce the fine. The Review Board considered Keystone's request on August 13, 1987, and denied it by letter dated August 18, 1987. Keystone then requested a rehearing. The Review Board met on December 8, 1987, and denied rehearing by letter dated December 14, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order reducing the fine against Keystone to $750. RECOMMENDED this 2nd 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 2nd day of May, 1991.
The Issue The issue for determination is whether the Commercial Motor Vehicle Review Board's decision in this matter is proper; a determination that necessarily requires a finding of whether Respondent is liable for payment of a civil penalty for commission of the infraction of interstate operation of a commercial motor vehicle without first obtaining a fuel use permit.
Findings Of Fact On March 17, 1990, Respondent's driver, Thomas Martin, was driving North on Interstate Highway 95 (1-95) in Respondent's 1985 Peterbilt three axle diesel truck. Martin stopped the vehicle at Petitioner's weigh station located on 1-95 near Yulee, Florida. Petitioner's station law enforcement personnel observed that there was no fuel tax identification on the truck and that Martin had no temporary fuel tax permit. The truck was registered in the State of Georgia and Martin informed station personnel that he was only going a short distance into Georgia to have repairs made to the truck. Further, he stated to personnel at the station that he thought the weigh station would be closed that day. Between the weigh station's location on the interstate and the boundary with the State of Georgia, there are no exits from 1-95. Vehicles traveling northbound are required to drive into Georgia before they can exit the interstate highway. A median crossing at the weigh station permits only law enforcement and emergency vehicles to cross over to the southbound lane of the interstate prior to entry into Georgia. Martin was assessed a civil penalty by weigh station law enforcement personnel of $50 as a result of Respondent's failure to comply with the State of Florida's fuel tax registration requirements. Further, Martin was then issued a temporary fuel tax permit for a fee of $45 to enable the vehicle to proceed from the weigh station. Martin requested that the Commercial Motor Vehicle Review Board review the civil penalty assessment. Subsequently, the Board met on April 12, 1990, and reviewed civil penalty assessed against Martin. The Board determined that a refund of the penalty to Martin was not appropriate and, on April 24, 1990, Martin requested a formal administrative hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered confirming the imposition of a civil penalty of $50 upon Respondent and affirming Respondent's payment of $45 for a fuel use permit in conjunction with the assessment of the civil penalty. DONE AND ENTERED this 14th day of March, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 14th day of March, 1991.
Findings Of Fact Respondent operated a truck on May 14, 1991, which had a legal weight of 80,000 pounds. The truck was weighed on May 14, 1991, at the White Springs Scales on I-75. At the time it was weighed, the truck weight registered 87,600 pounds. The actual weight of the truck exceeded the legal weight by 7,600 pounds. The operator of the truck requested a second weighing. A second weighing was performed with the same result as the first weighing. Petitioner imposed a penalty of $380 which was paid by Respondent. The amount of the penalty was accurately calculated in accordance with applicable law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order upholding the fine imposed against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1992. DANIEL 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 23rd day of January, 1992.
The Issue Whether or not Petitioner correctly assessed a penalty against the Respondent in the amount of $585.00 on May 6, 1991. 1/
Findings Of Fact Steve Ward has been employed by Petitioner, Department of Transportation in the motor carrier compliance section for approximately three years. His official duties include, inter alia, weighing trucks, checking license plates, fuel permits and insurance compliance. On May 6, while working at the official weight station in Old Town, Florida, Steve Ward weighed a truck owned by Respondent which had a gross weight of 91,700 pounds. The load was a "multi-load" which consisted of a crane counter weight and a roll of cable. Respondent's driver presented Ward with a state of Florida "blanket permit". Upon reviewing the permit, Steve Ward advised Respondent's driver that since his truck carried a "multi-load", the blanket permit was ineffective and therefore the maximum load allowed on his vehicle was 80,000 pounds. Steve Ward completed a load report and field receipt and gave a copy of the report/receipt to Respondent's driver, Pat Wheeler. Respondent was assessed a $585.00 penalty for operating a vehicle with a load 11,700 pounds over the 80,000 pound maximum load limit. Steve Ward followed the standard procedures in weighing Respondent's vehicle. The weight scales at the Old Town Official Station in Dixie County are inspected semi-annually pursuant to Petitioner's rules and regulations. As stated, Respondent, or a representative on its behalf, failed to appear at the hearing to contest the penalty assessed against its driver, Pat Wheeler, on May 6.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a Final Order denying Respondent's request for a refund of the penalty assessed against it on May 6, 1991 in the amount of $585.00. DONE and ENTERED this 14th day of January, 1992, in Tallahassee, Florida. JAMES E. BRADWELL 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 14th day of January, 1992.
The Issue The issue for consideration in this matter is whether the Respondent violated the weight limitations for truck traffic over a low limit bridge on SR 850 in Palm Beach County, Florida on November 12, 1991, and if so, what is the appropriate penalty.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Department of Transportation, was the state agency responsible for enforcing the state statutes involving commercial carrier weight compliance in this state which it does through its Office of Motor Carrier Compliance staffed with uniformed certified law enforcement officers who have the authority to cite drivers and owners of commercial vehicles which violate the load limits on the streets and highways of this state. On November 12, 1991, at approximately 2:30 PM, Officer Roy Neff stopped the Respondent's open board truck for crossing the low limit bridge located on State Road 850 in North Palm Beach, Florida, while apparently overloaded. The truck was carrying a load of drywall sheets and stucco. Officer Neff weighed the vehicle with the Department's portable scales he carried with him. These scales are calibrated for accuracy every 6 months. He utilized the standard Department weighing procedure which calls for a weight under each axle combined to give a total vehicle weight. This vehicle weighed 68,000 pounds loaded, according to this procedure used. Because this particular bridge was allowed no more than 26 tons, (52,000 pounds), of weight for a vehicle in this category, (non-trailer with 2 axles), Officer Neff cited the Respondent's driver for an overweight of 16,000 pounds. Since overweight is penalized at 5 per pound, the penalty assessed was $800.00. The approach to this bridge was clearly marked at several locations with signs indicating the maximum weight permitted for this bridge was 26 tons. These signs were located at sites which were far enough away from the bridge (1 mile and 1/2 mile) to give a driver ample opportunity to turn around or to take an alternate route to his destination on roads situated between the signs and the bridge. When the citation was issued here, the driver posted an acceptable bond and the vehicle was released. Respondent does not deny its vehicle as loaded exceeded the state's weight limitations for this bridge. However, it contends that the amount of overweight was less than that determined by officer Ness and it therefore overpaid the penalty by $252.30. Respondent bases this calculation on what it claims was the load on the truck at the time, multiplied by the weight per piece as provided by the manufacture of the product. In support of its claim, Respondent offered a handwritten, self-made list of weights purportedly taken from manufacturer furnished documents. These weights are then utilized in a computation of total load weight based on another handwritten list of materials, reportedly on the truck at the time, which was reconstructed from the delivery ticket for that trip approximately one week or so after the citation was issued. The weakness of this evidence is compounded by the fact that there is no weight in the "manufacturer's" list for the 30 sheets of 14 foot long drywall which Respondent claims weigh a total of 4,284 pounds. There is also no source for the 6,000 pounds of stucco. Presumably, the "75 stucco" relates to 75 bags at 80 pounds per bag. No doubt Respondent's protestations of overpayment are honestly made and made with good intentions. However, its evidence in support of its claim does not outweigh the evidence that the Department scales used to conduct the inspection here were calibrated for accuracy every 6 months. There is no evidence to indicate either that they were not accurate when used or that the weighing procedures followed were improper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is, therefore: RECOMMENDED that a Final Order be entered assessing a civil fine in the amount of $800.00 against the Respondent, Delta Building Supplies. RECOMMENDED this 20th day of July, 1992, in Tallahassee, Florida. COPIES FURNISHED: Vernon L. Whittier, Esquire Department of Transportation 605 Suwannee Street, MS - 58 ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1992. Tallahassee, Florida 32399-0458 Tim Czencz Delta Building Supplies 12951 SW 124th Street Miami, Florida 33186 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
