The Issue Whether Respondent properly fined Petitioner the sum of $647.00 for the reasons set forth in the Load Report Citation Number 029011M, issued March 5, 1997.
Findings Of Fact Petitioner is the owner of Keys Marine Drilling, which operates in Monroe County, Florida. Petitioner uses a large floating pile driver in his business. This pile driver is usually stored on Petitioner's property until it is needed on the job site. The pile driver usually remains on the job site until the job is completed. At all times pertinent to this proceeding, Petitioner was the owner and operator of a 1978 Ford van. This van had been licensed as a “collectible” vehicle and had a gross vehicle weight of 10,000 pounds. On March 5, 1997, Petitioner was driving his van on U. S. 1 in Monroe County. Petitioner was using his van to tow the floating pile driver, which had been placed on a trailer. On March 5, 1997, Jorge Fernandez Delara, a motor vehicle compliance officer employed by Respondent observed that Petitioner did not stop at a weigh station at Plantation Key. Officer Delara immediately thereafter stopped Petitioner. On the instructions of Officer Delara, Petitioner returned to the weigh station.1 Officer Delara determined that Petitioner had registered his van as a collectible vehicle.2 This registration would not permit Petitioner's vehicle to have a gross vehicle weight in excess of 10,000 pounds. Officer Delara weighed Petitioner’s van, trailer, and the load on the trailer, and determined that the combined weight was 22,940 pounds. Thereafter, Officer Delara issued to Petitioner the citation that is at issue in this proceeding. Officer Delara correctly determined that Petitioner’s van's registration was not proper.3 He determined that Petitioner’s rig was 12,940 pounds overweight. He thereafter fined Petitioner the sum of $647.00, which is calculated, pursuant to Section 316.545(2)(b), Florida Statutes,4 by multiplying the number of pounds the rig was overweight by $0.05.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order that sustains the fine imposed against Petitioner. DONE AND ENTERED this 10th day of February, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1998.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On November 16, 1987, the Respondent signed, under oath, an application for an independent motor vehicle dealer license for the business name of Southern Auto Sales which was submitted to the Department, and, based upon that application, the Department issued an independent motor vehicle dealer license, number 7VI-011359, to Respondent d/b/a Southern Auto Sales on November 30, 1987. In the application referred to above, Respondent answered no to the question, Has the applicant or any partner or corporate officer or director: Been arrested on a felony or equivalent charge anywhere?; Been convicted of a felony or equivalent anywhere? In 1988, 1989, and 1990, Respondent submitted to the Department a Short Form Application, commonly referred to as a renewal application, and the Department renewed license number 8VI-011359 in 1988, 9VI-011359 in 1989, and 0VI-011359 in 1990. The number before the prefix VI indicates the year of issuance. Respondent signed each of these renewal applications under oath wherein the affirmation stated " . . . the information contained in this application is true and correct and that nothing has occurred since I filed my last application for a license or application for renewal of said license, as the case may be, which would change the answers given in such previous application." Additionally, the instructions for the renewal application advised the applicant that the short form could be used if the applicant was currently licensed and, among other things, there were no changes in the applicant's personal background such a criminal conviction. Respondent, currently holds an independent motor vehicle dealer license, number 1VI-011359, issued by the Department on May 1, 1991. Respondent, using the name William J. Butler, was arrested and charged in December 1977 with uttering a forgery. The Respondent pled guilty to the charge of uttering a forgery in April 1978 before the Circuit Court, Harrison County, Mississippi and was sentenced to four years in the Mississippi Department of Corrections. In 1978, the Respondent, using the name William J. Butler, was arrested and charged with uttering a forgery. Respondent was subsequently convicted and sentenced by the Circuit Court, Jackson County, Mississippi to four years in the Mississippi Department of Corrections, said sentence to run concurrently with the sentence imposed by the Circuit Court, Harrison County, Mississippi. William J. Butler and Bernard J. Haney, the Respondent in this case, are one in the same person. On October 25, 1979, after serving only approximately 1 1/2 years of the two four-year sentences, Respondent was paroled by the Mississippi Parole Board with conditions for supervision made a part of the parole. In 1981 Respondent sought and received treatment for alcoholism, having been an alcoholic for a period of twenty years. After treatment, with the help of Alcoholics' Anonymous, Respondent has maintained a life of sobriety. In November 1988 a Warrant for Retaking a Paroled Prisoner was issued against Respondent, and he was recommitted to the Mississippi Department of Corrections for "absconding supervision" of his parole. However, with the help of some "new" friends, gained after his treatment for alcoholism, Respondent was incarcerated for only a short period, and was "honorably discharged" from the Mississippi Department of Corrections on December 20, 1984. The Harrison County charge of uttering a forgery was in connection with a check for $169.92, and the Jackson County charge of uttering a forgery was in connection with a check for $139.36. There is nothing stated in the Discharge Certificate that should have led the Respondent to believe or understand that his criminal record had been expunged and his rights restored upon receiving his "honorable discharge" from the Mississippi Department of Corrections in December 1984. However, considering the circumstances surrounding his commitment in the first place, his recommitment in 1984 and his immediate release thereafter, Respondent's testimony that such was his belief and understanding is credible. There is insufficient evidence to show that at the time of his initial application for licensure in 1987 or at the time of his renewal applications in 1988, 1989 and 1990, that Respondent acted fraudulently or willfully misrepresented the facts when he answered no to the questions concerning any prior arrests or convictions for a felony. After the release in 1979 and up to the date of his initial application for licensure, the Respondent's criminal record is clear except for the arrest in 1984 where the charges were dropped but the arrest resulted in his recommitment. From the date of his initial application until the date of the hearing the Respondent's criminal record is clear except for an arrest in 1990 concerning charges of tampering with an odometer. Apparently, these charges have been dropped and the matter handled civilly through the Polk County Citizen Dispute Settlement Center.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department enter a Final Order dismissing the administrative complaint filed herein. DONE and ENTERED this 27th day of August, 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 27th day of August, 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 in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner - 9. Adopted in Findings of Fact 5, 6, 7, 8, 1, 1, 2, 3, and 4, respectively. 10. Stated more as an argument than a finding of fact, otherwise rejected since there was no substantial competent evidence in the record to prove that there was fraudulent or willful misrepresentation of the facts in the application. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent's Proposed Recommended Order is divided into three principal parts: (a) Proposed Findings of Fact; (b) Comments on Testimony and Evidence; and (c) Proposed Conclusions of Law. Only the Proposed Findings of Fact will be addressed to in this Appendix. Adopted in substance in Finding of Fact 1. - 3. Unnecessary. Adopted in substance in Finding of Fact 1. - 7. Covered in Preliminary Statement. Conclusion of Law. Covered in the Preliminary Statement, otherwise unnecessary. Covered in the Preliminary Statement. - 12. Covered in the Preliminary Statement, otherwise unnecessary or not material or relevant. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A432 Tallahassee, FL 32399-0504 Charles R. Mayer, Esquire Post Office Box 267 Highland City, FL 33846 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500
Findings Of Fact The parties stipulated to the facts set forth in paragraphs 1-5, below. Stipulated Facts James Phillips is the president and sole shareholder of the Respondent, Sunshine Auto Sales, Inc. The Respondent's place of business is located at 2050 North West 36 Street, Miami, Florida 33142. The Respondent was issued motor vehicle dealer license number 7VI- 005928 on May 1, 1987. The Petitioner's order summarily suspending Respondent's license was dated September 17, 1987, and was served on Respondent on or about November 9, 1987. On December 22, 1987, the Circuit Court for the 11th Judicial Circuit, in and for Dade County, Florida, entered an emergency injunction against enforcement of Petitioner's Order of Summary Suspension, contingent upon the posting of a $2500 bond by Respondent. The bond was posted on March 31, 1988. Other Facts On November 17, 1976, Respondent's president and sole shareholder, James Phillips, executed a sworn affidavit as part of the application for a motor vehicle dealer license. In that affidavit, he stated that no partner or corporate officer of the Respondent had ever been arrested or convicted of a felony. In subsequent annual renewal applications for the years 1977-84, Phillips stated that all terms and conditions as set forth in the original application were correct. In actuality, Phillips was arrested for breaking and entering, theft and rape in 1956. In 1960, he was arrested for aggravated assault. In 1972, he was arrested for possession of a stolen motor vehicle. Grand larceny was the subject of his arrest in 1976. In 1982, he was arrested for aggravated battery. Phillips' statement that he interpreted this language on the application and renewal forms to be applicable only to the corporation itself is not credited due to his demeanor while testifying and the clarity of the statement on the application requiring such disclosure. The Petitioner's policy is not to deny or revoke licenses simply on the basis of an arrest record of the applicant or licensee. Instead, when the information is correctly provided by applicants or licensees, a further investigation is made by the Petitioner to determine if there has been a conviction of a crime meriting suspension or denial of a license. When Petitioner becomes aware that an applicant or licensee has falsely answered an application regarding previous arrests, the policy of Petitioner is to deny the application for licensure or institute revocation action against a licensee on the theory that such falsification shows a lack of honesty in the applicant or licensee. On February 24, 1986, and May 20, 1986, James Phillips received warning letters from the Department reminding him that failure to apply for title or to file for transfer of title within 20 days following delivery of a vehicle to a purchaser is a violation of Florida law. In June and July of 1987, an employee of Petitioner, Helen Wandell, made numerous attempts to obtain information from Respondent regarding a particular complaint against Respondent. Information was sought by Wandell regarding the identity of the vehicle which was the subject of the complaint. She telephoned Respondent's facilities on June 10, 11, 12, and 16, 1987, during regular business hours and received no answer. On June 17, 1987, Wandell went to the Respondent premises during regular business hours and found the facility closed. She left a note and James Phillips called her the following day. He gave her information concerning the subject vehicle which proved to be incorrect. Again, Wandell attempted to contact Respondent's establishment by telephone on June 22, and 23, 1987, but did not get an answer. She telephoned again on July 24, 1987, and spoke with Phillips. In the course of the conversation, he informed Wandell that he could not provide the vehicle identity information she sought. He further warned her not to call again, cursed her and threatened to kill her. Madeline Fils-Aime does not read or understand English very well. On April 8, 1987, she entered into a parol agreement to buy a 1981 Mercury automobile from Respondent. The agreed upon price, as established by testimony of Fils-Aime, was $750. This amount was to be paid in installments as the money became available to Fils-Aime. Until the total amount of $750 was paid, the car would continue to be owned by and remain in the Respondent's establishment. On April 8, 1987, Fils-Aime paid $160 to Robert Sayre, James Phillips' stepson, at Respondent's establishment toward the cost of the automobile. She received a receipt from Sayre. The receipt carried the notation "no refunds" and "sold as is." The receipt also carried a notation that the remainder of the funds would be due on April 15, 1987. Fils-Aime returned to Respondent's establishment on April 16, 1987, paid another $100, received another receipt signed by Sayre carrying a notation that the remainder would be due on April 26, 1987. This receipt also carried the notation "no refunds." Fils-Aime returned to the Respondent establishment again on April 21, 1987, and paid another $40 on the car. This time she received a receipt signed by Thomas Phillips, son of James Phillips, which carried the notation that the balance would be due on May 7, 1987. Another payment of $100 was made by Fils-Aime on May 4, 1987. Another receipt bearing the signature of Robert Sayre was received. A new balance due date of May 14, 1987, was shown on this receipt. Fils-Aime returned at a later date to make a subsequent payment, but the Respondent's establishment was closed. Approximately six weeks after the May 4, 1987, payment, Fils-Aime returned to Respondent's establishment to learn that the car for which she had been making payments was gone. Testimony of James Phillips establishes the sale of the vehicle to another person. Phillips also readily admitted knowledge of the payments made by Fils-Aime and the practice of granting extensions to her of the due date for the total balance at the time of each payment. Since his clientele is poor, he uses the "lay away" plan on occasion to sell vehicles to individuals like Fils-Aime. In spite of her demands, he did not return Fils- Aime's previous payments to her. At the time of the May 4, 1987, payment, Phillips gave Fils-Aime an envelope to use in the event the Respondent facility was closed on her return to make a future payment. He instructed her to leave the envelope with the body shop next to Respondent's establishment. A contractual document offered in evidence at hearing by Respondent to substantiate James Phillips version of the parol agreement with Fils-Aime is not credited with any probative value. The document appears unsigned by anyone and the portion of the page where Fils-Aime would have signed is conveniently torn off and missing. Additionally, Fils-Aime denied knowledge of the document. After receipt of a complaint by Fils-Aime, the Petitioner's employee was denied access to Respondent's premises to inspect Respondent's records on July 21, 1987. The request was made during reasonable business hours and within the business hours posted on the fence at Respondent's establishment. On August 31, 1987, Respondent sold a 1979 automobile to Gloria Little. Respondent did not apply for title for Ms. Little. She went to the tag agency herself because there was no one at Respondent's facility to go with her. She was unable to obtain the title transfer and contacted Petitioner's offices. A telephone call by Petitioner's employee resulted in an individual from Respondent's establishment being made available to assist and complete the title transaction on December 16, 1987. The Respondent did not apply for title transfer to a 1975 vehicle sold to Rafael Castillo on August 8, 1987. After being contacted by a Petitioner employee, Respondent applied for the title transfer on December 16, 1987. On December 29, 1987, Respondent sold a 1981 automobile to Kimberely DeNunzio. Title application to the vehicle was made in February, 1988, and issuance of the title to DeNunzio occurred February 24, 1988. The Petitioner's Order of Summary Suspension of Respondent's motor vehicle license was in effect at the time of this sale.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's license and denying the application for renewal of same. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of July, 1988. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-5616, 88-2528 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS The Petitioner's proposed findings consisted of paragraphs erroneously numbered. Those paragraphs, 25 in number, have been properly numbered and are addressed as follows: 1-3. are included in findings 1-3, respectively. 4-7. are included in findings 12-18. 8-10. are included in finding 21. 11-13. included in finding 22. 14-16. included in finding 23. 17. included in finding 20. 18-19. included in finding 11. included in finding 6. included in finding 7. included in finding 8. 23-24. included in finding 9. 25. included in finding 10. RESPONDENT'S PROPOSED FINDINGS The Respondent's proposed findings were likewise erroneously numbered. Numbering has been corrected and the 36 paragraphs are addressed as follows. 1-3. included. 4-15. rejected, unnecessary to result reached. 16. included in finding 12. 17-18. included in finding 6. 19-27. rejected, unnecessary. 28-29. addressed in finding 5. rejected, on basis of credibility. included in finding 17. 32-36. rejected as unnecessary. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel State of Florida, Department of Highway Safety and Motor Vehicles Department of Legal Affairs Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Seril L. Grossfeld, Esquire 408 South Andrews Avenue Suite 101 Fort Lauderdale, Florida 33301 Charles J. Brantley Director, Division of Motor Vehicles Room B439 Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
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
