The Issue Whether Respondent properly fined Petitioner the sum of $115.00 for the reasons set forth in Commercial Motor Vehicle Citation No. 1026031, issued July 28, 2003, as modified by the Commercial Motor Vehicle Review Board on November 6, 2003.
Findings Of Fact At all times pertinent to the issues herein, the Department was the state agency responsible for enforcing the statutes involving commercial carrier vehicle weights 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. Tree Trimming is the owner of a "straight truck," i.e., a two-axle truck on which the cargo unit and the motor power unit are located on the same frame so as to form a single, rigid unit. See § 316.003(70), Fla. Stat. (2003). The truck carries Vehicle Identification No. ("VIN") 2FZAAJCP11AG86965 and Florida license no. D28CYX. The declared gross vehicle weight of the truck is 25,900 pounds, making that the maximum weight the truck can carry under its license. Tree Trimming also owns a wood chipper that rides on a single-axle trailer with VIN 60142267. The manufacturer's weight rating for the trailer is 7,040 pounds. On July 28, 2003, Officer John Brenner stopped Tree Trimming's truck and trailer, which was driven by Mr. McCarren, an employee of Tree Trimming. Officer Brenner requested Mr. McCarren to produce his driver's license and the vehicle registration for the truck. He performed an inspection of the truck and trailer, noting several minor safety violations, which are not relevant here. Officer Brenner then weighed the truck and trailer at the scene utilizing a set of certified, recently calibrated, Department-owned scales, using the standard weight procedures. He weighed them without detaching the trailer from the truck. Officer Brenner first placed the scales under each tire of the truck. The front axle of the truck weighed 8,000 pounds. The rear axle of the truck weighed 11,300 pounds. Officer Brenner next placed the scales under the tires of the trailer. The single axle of the trailer weighed 7,300 pounds. The total weight of the truck and trailer was 26,300 pounds. When the 25,900 pound maximum legal weight was subtracted from the actual weight, Tree Trimming's truck was seen to be 400 pounds overweight. That excess, taxed at five cents per pound, resulted in a civil penalty of $20.00. Officer Brenner noted that Mr. McCarren carried a Class D Florida driver's license. A Class D driver's license authorizes its holder to drive a truck with a weight of 8,000 pounds or more, but less than 26,001 pounds. To drive a motor vehicle combination weighing more than 26,001 pounds, a driver must possess a valid Class A, B, or C driver's license. See § 322.54(2)(c) and (d), Fla. Stat. (2003). Officer Brenner cited Tree Trimming for allowing its driver to operate a vehicle outside of his class and assessed Tree Trimming a civil penalty of $100.00. Tree Trimming contended that Officer Brenner should have disconnected the truck and trailer before weighing them. Tree Trimming argued that weighing the truck and trailer without disconnecting them resulted in the connecting tongue of the trailer being weighed twice. This contention is rejected. The tongue of the trailer resting on the back of the truck would naturally increase the measured weight of the truck, but would also decrease the measured weight of the trailer by a corresponding amount. There is no basis to find that the weight of the tongue would have registered twice on the scales. Tree Trimming also contended that Officer Brenner was either incompetent or overly eager to find violations. As to the incompetence allegation, no evidence was offered that Officer Brenner was unqualified to weigh Tree Trimming's vehicles. Officer Brenner is a certified law enforcement officer and has received 104 hours of training in weight, registration, permits, and over-dimensional aspects of commercial vehicles. He has completed 328 hours of training specifically related to his duties with the Office of Motor Carrier Compliance, including the roadside weighing of vehicles. As to the allegation of over-eagerness, Tree Trimming pointed to statistics showing that in 2003, Officer Brenner weighed 170 vehicles and issued citations to 158 of them, a citation rate of 93 percent. The Department's statewide statistics for 2003 indicated that 30,711 vehicles were weighed and 14,844 citations were issued, a citation rate of 48 percent. The disparity between Officer Brenner's citation rate and the statewide citation rate was said by Tree Trimming to establish that Officer Brenner is determined to issue citations to every vehicle he stops. The evidence established that none of Officer Brenner's 158-weight citations in 2003 were challenged, except for the one at issue in this proceeding. In any event, the cited statistics do not demonstrate that Officer Brenner did anything wrong in issuing this or any other citation. After issuing the citation, Officer Brenner allowed Mr. McCarren to disconnect the trailer from the truck and to drive the truck away. Officer Brenner explained that once the trailer was detached, the truck was under the weight limit and Mr. McCarren could legally drive it. Tree Trimming immediately drove the truck to a local dumping/recycling facility and had it weighed, once with its full load and again after the load was dumped. The scales at the dump indicated the loaded truck weighed 18,020 pounds, whereas Officer Brenner's weighing showed the truck weighed 19,200 pounds. Tree Trimming contends that this disparity proves that Officer Brenner's weighing was incorrect and that the truck was under the maximum weight. Tree Trimming did not offer evidence as to the accuracy or calibration of the scales at the dump or any verification that the load was not lightened on the way to the dump. Officer Brenner testified that the load of wood chips was falling out of the back of the truck at the time he weighed it. When the truck was weighed at the dump, it was not connected to the trailer. As indicated above, the truck was supporting some of the trailer's weight when Officer Brenner weighed it. Taking all of the evidence into account, Tree Trimming's weighing of the truck at the dumping facility is insufficient to establish that Officer Brenner's weighing of the truck and trailer at the roadside stop was inaccurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a final order be entered imposing an administrative fine of $15.00 on Tree Trimming & Removal, Inc. DONE AND ENTERED this 13th day of May, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 13th day of May, 2004. COPIES FURNISHED: J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Glen Wayne Shelton, President Laura R. Chamberlain, Vice President Tree Trimming & Removal, Inc. 3808 Wilkinson Road Sarasota, Florida 34233 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact On or about September 11, 1989, a commercial, dump truck owned by Petitioner, Alamazan Brothers Trucking, Inc., was travelling on State Road 807. Mr. Michael Roberts, Safety and Hazardous Materials Officer for Respondent, Department of Transportation, noticed that the truck did not have the required identification on the door and stopped the truck for further investigation. After the truck stopped, Mr. Roberts noted that the truck possessed an expired temporary license tag, and the driver did not have a valid registration for the truck. Mr. Roberts, then, weighed the truck with his portable scale and calculated a gross weight of 65,900 pounds. Mr. Roberts gave the driver the opportunity to contact the owner of the truck about the registration and, in accordance with policy of the Department, allowed the owner over one hour to produce a valid registration. A representative of the owner appeared and showed Mr. Roberts a duplicate registration certificate purchased the same day as the incident which indicated that the authorized gross weight for the truck was 24,680 pounds. Mr. Roberts made the determination that the registration was not valid at the time of the stop and imposed a fine for overweight of $1,545. The fine was calculated for the amount of the gross weight in excess of 35,000 pounds times five cents per pound. Existent law establishes that, for the purposes of calculation of a penalty such as the one at issue, the authorized gross weight for an unregistered vehicle is 35,000 pounds. An additional $50 was imposed as the fine for not having the required identification on the door of the truck. The total penalty of $1,595 was paid under protest. However, Petitioner did, in fact, have a valid registration on the day of the stbp. Through administrative delay, the registration certificate had not been mailed to Petitioner. On or around September 7, 1989, Petitioner purchased the truck and a temporary tag was issued to Petitioner by the dealer from which he purchased the truck. At that time, an application for registration was made to the Department of Highway Safety and Motor Vehicles. The application was for a registration authorizing a gross weight of 64,000 pounds. Petitioner had not received the permanent tag or registration by the date the stop occurred. After Petitioner was alerted at the stop, Petitioner obtained a duplicate registration within the time allotted to him by Respondent. This duplicate, the one shown to Mr. Roberts on the day of the stop, indicated an authorized gross weight of 24,680 pounds, an obvious typographical error. The gross weight did not match the gross weight applied for, instead, it duplicated the amount of the empty weight into the gross weight category. On September 13, 1989, Petitioner returned the form to the issuer and requested a corrected duplicate registration. The second duplicate also was in error. This time the form indicated the correct gross weight of 64,000 pounds, but, also, repeated that gross weight amount in the empty weight category. At the hearing, Petitioner also presented the application for registration which indicated it had applied for and was taxed for a gross weight of 64,000 pounds. It was only due to administrative delay that the correct registration was not presented at the time of the stop. However, no competent evidence was received which indicated that the truck did possess the required identification on the door, and Mr. Robert's testimony about the lack of such identification is deemed credible. Although the correct gross weight for which Petitioner is licensed is 64,000, his load at the time of the stop was 65,900 or 1,900 in excess of his 64,000 pound authorized amount. At five cents a pound his penalty for overweight should be $95.00 and not $1,545.00. The $95.00 plus the $50.00 for the failure to display the required identification yields a corrected fee of $145.00 and a refund due to Petitioner of $1,400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Transportation issue a Final Order correcting the fine imposed on Petitioner, establishing the appropriate fine at $145.00 and refunding $1,400 to Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June, 1990. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2088 The following represents the rulings on the proposed findings of fact submitted by the parties. The rulings are by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact portion of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate. RESPONDENT Adopted in relevant part in paragraphs 1,2 and 3. Adopted in relevant part in paragraphs 4,5 and 9. Adopted in relevant part in paragraphs 6,7,8 and 10. COPIES FURNISHED: Dewey H. Varner, Esquire Varner, Cole & Seaman 2601 Tenth Avenue, North, Suite 410 Lake Worth, Florida 33461 Vernon T. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scanlan Interim General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether a commercial motor vehicle owned by Respondent exceeded the posted weight when it crossed a "low limit" bridge in rural Brevard County, Florida on June 3, 1992, in violation of Section 316.545, Florida Statutes. Whether extenuating circumstances justifies the reduction or elimination of the proposed penalty for the alleged violation.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 316, Florida Statutes, which regulates the weight and load of commercial motor vehicles on the state highway system. State Road 520, in Brevard County, Florida, is a part of the state highway system, and title to the right-of-way for said highway is held in the name of the State. A bridge which crosses over the St. Johns River on State Road 520 (SR520) in Brevard County, Florida, had a weight limit of 80,000 pounds for motor vehicles until October 20, 1991. On that date, the maximum weight for vehicles was reduced to a limit of 56,000 pounds. On May 26, 1992, the weight limit was again reduced, and the Department posted a new weight limit for the bridge of 30,000 pounds. On June 3, 1992, a commercial motor vehicle owned by Respondent was traveling northbound on Interstate 95 (I-95). The vehicle exited I-95, proceeded westbound on SR 520, and crossed the bridge. After the vehicle crossed the bridge, it was stopped by a Department Transportation Officer, and taken to a nearby pit scale. The weight of the vehicle was accurately determined to be 56,140 ponds. The Transportation Officer then imposed a fine of $1,307.00 on the vehicle, based on 5 cents per pound above the posted weight limit of 30,000 pounds. The penalty was paid by M & M Truck Service, and the vehicle was permitted to proceed. M & M Truck Service sought a refund of the penalty from the Commercial Motor Carrier Review Board. The Board authorized a 50 percent refund under its policy providing for a 50 percent refund when vehicles exceed a posted weight limit within 30 days of the date of a posted weight reduction. The following standard weight limit signs, each showing a 30,000 pound weight limit, had been posted by the Department on SR 520, from I-95 to SR 528, on May 26, 1992: Facing Eastbound on SR 520 (in Brevard County): Just east of I-95: "Weight Limit Last Exit" Just west of I-95: "Weight Limit" (no distance to bridge stated) 2 miles east of the bridge and just east of SR 524: "Weight Limit 2 Miles" Just east of the bride: "Weight Limit" Facing Westbound on SR 520 (in Orange County): Just west of SR 528: "Weight Limit 9 Miles" 4.2 miles west of bridge: "Weight Limit Restriction Ahead" (no distance to bridge state) 4 miles west of bridge: "Weight Limit 4 Miles" Just west of SR 532: "Weight Limit Last Exit" 2 miles west of the bridge: "Weight Limit 2 Miles" Just west of the bridge on the St. Johns River: "Weight Limit" The above signs meet current MUTCD standards. MUTCD refers to the Federal Highway Administration Manual on Uniform Traffic Control Devices, 1988 Edition, which has been incorporated by reference into Florida Administrative Code Rule 14-15.010. SR 520 was under construction at the time the vehicle crossed the bridge, and the driver did not observe the signs posted by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that a penalty correctly assessed to M & M Truck Service, Inc., under the provisions of Section 316.545, Florida Statutes, and that no refund of the reduced penalty of $653.00 should be made. DONE and ENTERED this 8th day of June, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 8th day of June, 1993. APPENDIX Petitioner's proposed findings of fact: Accepted in substance by stipulation. Respondent's proposed findings of fact: Consisted of argument directed to the stipulated facts and need not be specifically ruled upon. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Gary E. Moses, President M & M Truck Service, Inc. 313 Shadow Oak Drive Casselberry, Florida 32707 Ben G. Watts, Secretary Attn: Michelle Arsenault #58 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 605 Suwannee Street Tallahassee, Florida 32399-0458
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 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.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Respondent, Sanwa Growers, Inc., owns and operates over the highways of the state of Florida a commercial vehicle identified as a 1987 Ford truck, VIN 9BFPH70P3HDM03333, Florida license number H1056W (vehicle). On November 13, 1990 the Respondent's vehicle while traveling on highway I-4 in Hillsborough County, Florida was stopped and weighed by the Department. The total weight of the vehicle was 24,100 pounds consisting of 10,540 pounds on the steering axle and 13,560 pounds on the rear axle. A Load Report and Field Receipt was completed which indicated the legal weight (declared gross vehicle weight) of the vehicle to be 19,999 with a tax class weight (gross vehicle weight) of 24,100 pounds which resulted in the vehicle being 4,101 pounds overweight. The Respondent was assessed a penalty of $0.05 per pound for each pound the truck was overweight which resulted in a total penalty assessed the Respondent of $205.05. The Respondent paid the penalty as assessed and was issued a Field Receipt. The gross vehicle weight (GVW) of the vehicle as declared by the Respondent in accordance with Section 320.01(12), Florida Administrative Code, on vehicle's registration certificate issued on September 19, 1990 was 19,999 pounds which was the legal weight indicated on the Load Report issued on November 13, 1991. On November 13, 1990 the GVW (legal weight) of the vehicle as declared by the Respondent was 19,999 pounds. The GVW of the vehicle as declared by the Respondent on the initial registration dated May 11, 1988 was 29,500 pounds. However, on the subsequent registration of the vehicle dated January 4, 1989, the declared GVW by the Respondent was 16,090 pounds which was the same as the net weight of the vehicle shown on the registration. Although the registration issued on January 4, 1989 expired on December 31, 1989, there was no evidence of a registration being issued upon expiration. The next registration that was issued subsequent to January 4, 1989 that is in evidence was issued on September 19, 1990 apparently for the purpose of increasing the GVW from 16,090 pounds to 19,994 pounds. This was the registration in effect at the time the vehicle was weighed on November 13, 1990. On November 15, 1990, two days after the weighing, the registration was corrected by increasing the GVW from 19,999 pounds to 29,500 pounds. There was insufficient evidence to show that the GVW set out in each of the registrations in evidence was not the GVW as declared by the Respondent at the time of issuing the registration or that the issuing agency incorrectly listed the GVW as declared by the Respondent on any of the registrations in evidence. On November 13, 1990 the Respondent's vehicle was 4,101 pounds overweight when stopped and weighed in Hillsborough County, Florida on I-4 and the calculation of the penalty ($0.05 x 4,101 pounds - $205.05) is correct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Department enter a Final Order finding the Respondent subject to the penalty as assessed and denying its request for refund of the penalty. DONE and ENTERED this 9th day of October, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 9th day of October, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-3727 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Covered in the Preliminary Statement but adopted in substance as modified in Findings of Fact 1 through 3. Adopted in substance as modified in Finding of Fact 1. Adopted in substance as modified in Finding of Fact 8. Adopted in substance as modified in Findings of Fact 2 and 4. - 6. Adopted in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent did not submit or file any proposed findings of fact. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, FL 32399-0458 Wendy Wheelock Qualified Representative Sanwa Growers, Inc. 5107 State Road 674 East Wimauma, FL 33570 Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
Findings Of Fact Respondent Bard Opsahl is an employee of his father's corporation, Respondent John G. Opsahl, Inc. September 22, 1994, Respondent Opsahl was driving a truck of Respondent John G. Opsahl, Inc. He had just acquired a load of dirt from a pit and had turned north on Taylor Road from Jones Loop Road. On the east side of Taylor Road, immediately north of the Jones Loop Road intersection, there was a sign marked "Weight Limit." A sign beside the "Weight Limit" sign warned that a weight-limited bridge was ahead. The Weight Limit sign contained profiles of three trucks and three tractor-trailer combinations. Each of the profiles displayed a number of axles. Beside four of the profiles were numbers followed by "Ts," which indicates tons. The bottom profile was of a five-axle tractor-trailer. Next to it was a 22-ton limit. The next profile from the bottom was of a four-axle, cab-over- engine tractor-trailer, which bore an 18-ton weight limit. The next profile was of a three-axle tractor-trailer, which bore a 22-ton weight limit. The next profile was of a four-axle truck, which bore a 15-ton weight limit. The top two profiles were of a two-axle truck and a three-axle truck. What appeared to be a piece of wide, white tape ran between the numbers and the "T's" down the entire length of the sign. Beside the top two profiles, another piece of tape obscureed the numbers, so that they could not be read. Based on the Load Report Citation, Respondent Opsahl was driving a three-axle truck (i.e., without a trailer). The weight limit for this type of vehicle was one of the two that was obscured. There was no Weight Limit sign at the bridge itself on the day in question. Respondent Brad Opsahl drove his vehicle across the bridge on Taylor Road north of Jones Loop Road. There are two facts adverse to Respondents. First, the tape on the Weight Limit sign did not appear to invalidate all weight limits, especially in view of the sign next to it warning of a "bridge weight restriction ahead." In other words, Respondent Brad Opsahl should have understood that the bridge was a weight-limited bridge. Second, Respondents' truck weighed 59,800 pounds, or 30 tons, which exceeded the highest limit posted on the Weight Limit sign. Although Respondent Opsahl was a young, relatively inexperienced driver, it is inconceivable that he would think that a three-axle truck could better distribute a load than a five- axle tractor-trailer combination without a cab-over-engine. The limit for the latter vehicle, which was the highest visible limit, was 22 tons. Respondents have already paid the fine of $1290 cited in the citation.
Recommendation It is hereby RECOMMENDED that the Commercial Motor Vehicle Review Board enter a final order imposing a penalty against Respondents in the amount of $790 and refunding $500 of the $1290 already paid by Respondents. ENTERED on June 13, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on June 13, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as subordinate. 4-5: adopted or adopted in substance. 6: rejected as recitation of evidence. 7: rejected as irrelevant. 8: rejected as recitation of evidence. 9-13: rejected as subordinate and recitation of evidence. Rulings on Respondent's Proposed Findings 1-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9: adopted or adopted in substance as to amount paid. The amount of the recommended refund is different. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 ATTN: Eleanor F. Turner, M.S. 58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Cindy S. Price Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399 John L. Polk John L. Polk, P.A. P.O. Box 1221 Punta Gorda, FL 33951-1221 Commercial Motor Vehicle Review Board 1815 Thomasville Road Tallahassee, FL 32303-5750
The Issue The issues concern the intention by Petitioner to levy an $836 fine for the alleged operation of a commercial vehicle on a low-limit bridge when the commercial vehicle exceeded the weight limit for that bridge. See Section 316.545, Florida Statutes.
Findings Of Fact On December 17, 1990, a commercial vehicle driven by William Roy Grayson for the carrier Massey Franklin (Massey Trucking) came into Florida from Georgia on US Highway 17. In doing so it crossed the bridge over the St. Marys River. Petitioner has jurisdiction over that bridge. Petitioner in accordance with law had limited the weight that could be placed on that bridge by a commercial vehicle. That weight restriction was 32 tons. The commercial vehicle in question was weighed shortly after entering Florida at an inspection station operated by Petitioner. It weighed 80,720 pounds. Persons such as Mr. Grayson who operate commercial vehicles coming into Florida across the subject bridge are warned of the weight limit on the bridge by posted signs using symbols from the manual on Uniform Traffic Highway Administration as the national standard in accordance with Title 23 US Code. Those silhouette symbols used to post the weight limit for the bridge show a single unit truck with the weight limit of 27 tons and a combination truck with a weight limit of 32 tons. The truck in question was a combination truck. These warning signs on the weight limit were posted in Georgia at the time in question for the south bound traffic. Respondent's truck was south bound on that date. The first sign in Georgia before you enter Florida states "weight limit restrictions ahead." The second sign provides weight limit symbols showing a combination truck with a limit of 32 tons and notes that the distance from that restriction is three miles. The third sign before arriving at Scrubby Bluff Road in Georgia has the weight limit symbol of 32 tons for a combination truck and notes that this is the last exit before being restricted in weight. A fourth sign shows weight limit symbols with 32 tons for a combination truck and an arrow describing the exit from Scrubby Bluff Road to Interstate 95. The truck in question exceeded the weight limit by 16,720 pounds and was assessed a fine .05 per pound for a total penalty of $836.
Recommendation Based upon the consideration of the facts and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which imposes a fine in the amount of $836, pursuant to Section 316.545(3)(b), Florida Statutes. DONE and ENTERED this 5th day of July, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1991. APPENDIX The proposed facts by the Petitioner are subordinate to facts found. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Franklin Massey Massey Trucking 101 Wind Creek Lane Enterprise, AL 36330 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 Petitioner, Department of Transportation, was responsible for the licensing and regulation of the operation of commercial motor vehicles on all streets and roads in this state. The Respondent, Florida Mining & Materials operates and, at the time of the alleged violation, operated commercial vehicles over the roads of this state. By letter dated June 11, 1990, George L. Crawford, P.E., Acting Director of Lee County's Department of Transportation and Engineering, notified the Petitioner's Office of Motor Carrier Compliance that it appeared trucks were exceeding the posted weight limits of the Ortiz Road Culvert, located 0.3 miles south of SR - 80 in Lee County. As a result of this letter, the Department began to monitor the cited culvert and on July 19, 1990, Officer Ellis K. Burroughs observed Respondent's cement dump truck cross the culvert in front of and to the side of which, in plain view, was a sign indicating that trucks weighing over 5,000 pounds should detour and go down Luckett Road without crossing the culvert. According to Mr. Burroughs, Respondent's vehicle did not detour as directed and went north on Ortiz Avenue, over the culvert. Mr. Burroughs gave chase and finally stopped the driver of Respondent's truck some 6 or 7 blocks north of the culvert. When asked why he had failed to use the detour and had crossed the culvert, the driver of the truck said his office had told him to do so and he had done so before. This comment is introduced not to show aggravation but to dispel any inference of lack of knowledge of the limitation. The sign in question had been erected on December 4, 1980. Some months after this incident, the sign was changed and the current permissible weight is 20 tons. No reason was given for the change nor was any information presented as to whether any modifications were done to the culvert before or since the change. The culvert in issue was described as of light construction - a culvert pass-through underneath the roadway. Mr. Burroughs weighed the offending truck at the scene and determined it had a gross weight of 45,700 pounds. The legal weight on that bridge at the time was only 5,000 pounds and, therefore, the Respondent's truck was overweight by 40,700 pounds. At a penalty of 5 cents per pound of violation, the penalty was assessed at $2,035.00 which was paid by the Respondent on August 3, 1990. Respondent's representative, Mr. Watson, was not present at the time and had no personal knowledge of the incident. He claims, however, that his company was operating under the impression that even at the time, the weight limit over that culvert was 20 tons. He does not concede that at the time of the incident the load limit was only 5,000 pounds. The weight of the evidence, however, is that it was. He claims this road is the only way they have of getting to certain jobs and if cut off from crossing, they are cut off from their business. Mr. Watson admittedly is not familiar with the area and overlooks the fact that there are alternative routes to the other side of that culvert, albeit somewhat longer. He discounts the somewhat longer, (2 1/2 miles additional), route claiming, "That's a lot of milage when what you're hauling is redi-mix concrete." Mr. Watson introduced several pictures of other large trucks going over that same culvert in an effort to show that other vehicles may also have been in violation. Some of those pictures were taken subsequent to the limit change and reflect that the limit is 20 tons. Further, Mr. Burroughs and Mr. Thompson indicate that subsequent to the letter from the County requesting increased surveillance, at least 45 to 50 citations were issued at that culvert. Some carriers were cited several times. Respondent was cited only once. After paying the penalty assessed, Respondent appealed it to the Department's Commercial Vehicle Review Board which reviewed it at its November 8, 1990 meeting and determined that a refund was not appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's request for a refund of the $2,035.00 fine paid for the violation of the weight limits on the culvert in question here be denied. RECOMMENDED this 8th day of July, 1991, 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. COPIES FURNISHED: H. Robert Bishop, Jr., Esquire Department of Transportation 695 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ray Watson Operations Manager Florida Mining & Materials Post Office Box 2367 Tallahassee, Florida 33902 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 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Respondent, Parker Construction d/b/a Robert's Components, was operating a commercial vehicle, traveling north on Interstate Highway 75, on March 27, 1991. The truck stopped at the Department's weight scales located in the area of White Springs, Florida. The Department's Inspector checked the vehicle registration handed to him by the driver. The tag registration was for a valid Georgia tag in the PF category. The PF category allows for a maximum gross vehicle weight of 30,000 pounds. The total weight of Respondent's truck on March 27, 1991, was 72,180 pounds. The total weight exceeded its registered weight by 42,180 pounds. Respondent was assessed a statutory penalty of five cents a pound for all weight over the commercial vehicle's registered gross vehicle weight of 30,000 pounds. At five cents a pound, the penalty assessed was $2,109.00. Robert Parker, president and owner of Parker Construction verified that the truck was registered in the PF category. Respondent was in the process of obtaining an IRP tag which would have allowed him to operate the truck at the weight it was carrying. Mr. Parker had no intent to purposely operate an overloaded truck and this was the first violation he had ever incurred since buying the truck. When Mr. Parker contacted a weight inspector with DOT, he was advised that if he wrote a letter to the Review Board advising them of the above facts, the fine would probably be reduced. Mr. Parker was also told that the decision rested with the Review Board. Mr. Parker followed the officer's advise. However, his fine was not reduced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended: RECOMMENDED that a Final Order be entered finding that the penalty of $2,109.00 was correctly assessed against Respondent, pursuant to Section 316.545, Florida Statutes, and that Respondent's request for a refund be denied. DONE and ORDERED this 3rd day of March, 1992, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 March, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Robert Parker Robert's Components P. O. Box 2523 La Grange, Georgia 30241 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0458
