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.
Findings Of Fact Walker is a Florida corporation, with its principal office in Orlando, Florida. Designated a "minority business enterprise" for purposes of certain governmental contracts, the company is engaged in the business of demolition and transportation. Herb Walker is president and owner; he took over the operation of the business in 1988 or 1989 from his father, who had operated the business for approximately 20-25 years. At the relevant time, April through September of 1995, Walker owned approximately 13 vehicles: five trucks, four tractors and four trailers. Walker employed or leased approximately eight drivers, one of whom (Joe Warren) also served as a mechanic. The lease arrangement is for the convenience of the company for payroll and insurance purposes but does not relieve the company of compliance with certain record-keeping requirements. Terron R. Lindsey (Officer Lindsey) is a Motor Carrier Compliance Officer with DOT. In that capacity, he enforces state and federal laws and regulations governing commercial carrier safety through roadside inspections and terminal audits (also called safety compliance reviews). In March of 1995, Officer Lindsey and some other DOT staff were conducting an enforcement survey at Interstate 4 and U. S. 192, near Kissimmee. In the process, they pulled over approximately four Walker vehicles around 8:00 a.m. on March 15, 1995. There were problems with each vehicle: over-height, over-weight, and brakes out of adjustment. John Valois was one of the drivers. He did not have a required medical examination in his vehicle. Because of these roadside violations, and at the suggestion of John Valois, Officer Lindsey determined that he should conduct a terminal audit of Walker's facility. The Walker facility is a trailer, with Herb Walker's office at one end, an administrative office in the middle, and a waiting room or reception area at the other end. Officer Lindsey, unannounced, appeared at the facility on April 18, 1995 and found Inez Walker, Herb Walker's mother, in the office. Ms. Walker called John Valois on the radio and established telephone contact between him and Officer Lindsey. Herb Walker came in, but spoke only briefly to Officer Lindsey, and said that John Valois was in charge of the drivers and vehicles. John Valois confirmed by telephone that Walker had eight drivers, and Ms. Walker gave Officer Lindsey driver files for the following: Bob Beck, John Valois, Joe Warren, Duane Cross, Mike Walker, Calvin Bryant, Steve Tillman and James Thompson. Not one of the drivers' files was complete. All were missing essential documents, including a controlled substance test. Most of the files lacked the physical examination report and other required reports and documentation. Officer Lindsey also inquired about maintenance files on vehicles owned by the company. These were not produced because Mr. Valois explained that the files were kept at Parkway Trucks, the company which services the Walker vehicles. Officer Lindsey explained that the files needed to be available where the vehicles are kept, at the terminal. After completing his safety compliance review, Officer Lindsey told Inez Walker that he would waive the fines for any deficiencies as long as the company came into compliance by a follow-up visit in 60 to 90 days. He gave a copy of his survey checklist to Ms. Walker. Officer Lindsey returned to Walker's facility on July 12, 1995. Herb Walker told him that the drivers' files were all at the physician's office, where the drivers had their medical examinations. Officer Lindsey responded that he would return the next morning and that the files needed to be available then. On July 13, 1995, Officer Lindsey met John Valois at the Walker office. Mr. Valois confided that most of the deficiencies still existed, that he did not have time to do all of the paperwork, but that he could get the files current with another week's grace period. Officer Lindsey denied the extension request and examined the files. The vehicle maintenance forms were still not available and the drivers' files were still not complete. Controlled substance test results were available on five drivers, one of whom had failed the test and was still working. At Officer Lindsey's direction, that employee was removed. Physical examinations had been performed for four drivers. Officer Lindsey completed his second review and he told John Valois that penalties would be assessed after Officer Lindsey conferred with his supervisor. Together with Captain Ernest A. Brown, Officer Lindsey developed the following penalties for the Walker violations: Incomplete Driver Files $ 800 (eight drivers at $100 each) No Driver Medical Examinations $ 400 (four drivers at $100 each) Subpart H (No controlled substance $1,500 test) (six drivers at $250 each) No Maintenance Files $1,300 (13 vehicles at $100 each) $4,000 Petitioner's Exhibit No. 10) In assessing these penalties, Captain Brown and Officer Lindsey considered the fact that Walker is a small business. No fines were imposed as to records for out-of-service vehicles; and instead of penalizing each separate file violation, they assessed $100 for each of eight incomplete driver files. Since two drivers were no longer employed, out of the eight identified on April 18, 1995, the $250 fine for missing controlled substance tests was applied for six employees only. Officer Lindsey's rationale for assessment of the controlled substance test penalty was inconsistent as he had explained to Ms. Walker that violations corrected by his next visit would not be penalized. At hearing, he explained that he did not have the authority to waive the penalty for missing drug tests. Although the rules permitted a maximum aggregate amount of $5,000 in penalties assessed in one terminal audit, the aggregate amount in this case was $4,000. On August 1, 1995, Officer Lindsey returned to the Walker office and delivered to Walker's General Manager, Roy Francis, the notice of violations and penalties. The notice of violations and penalties include procedures for protest to the Commercial Motor Vehicle Review Board, including the provisions that the penalty had to be paid in order for a protest to be placed on the Review Board agenda. Roy Francis indicated that the company would protest the audit and penalties but did not pay the penalties on August 1, 1995. Herb Walker was also present on August 1, 1995 and was aware of the penalties. Terminal audits were made part of DOT's safety compliance program around 1990. At first, the audits were conducted as a courtesy education and information exercise. In 1993, with the promulgation of statutory authority and administrative rules, the agency began assessing penalties for violations found in the audits. By 1995, when the Walker audit was conducted, the agency still had very little experience with penalty collection in terminal audit cases. Walker was the first case in which the carrier refused to pay the penalty while the protest was pending. By the end of August of 1995, when Walker had still not paid the $4,000 assessed by Officer Lindsey, Captain Brown, after consultation with legal and other state-level department staff, authorized collection enforcement as described in Chapter 18 of the Motor Carrier Compliance Manual. On August 28, 1995, a field officer of DOT impounded a Walker vehicle found at County Road 472 and State Road 400. The vehicle was taken to the DOT yard in Deland, Florida, where it remained, in lieu of payment of the penalties. Herb Walker was initially told that he had to pay the penalties before his protest would be heard. Later, Elise Kennedy, Executive Secretary for the Commercial Motor Vehicle Review Board, informed him that his protest would be heard by the Board on September 14, 1995. Herb Walker did not appear before the Review Board in person or through counsel. The Board considered his written protest and the testimony of Officer Lindsey and denied the protest. Herb Walker admits that some of the deficiencies found by Officer Lindsey in April of 1995 existed at that time. He also admits that some deficiencies still existed in July of 1995, at the time of the return visit. However, he contends that he should have been given more time to come to full compliance, that he expended thousands of dollars to achieve compliance, and that in lieu of a fine or penalty, he should be permitted to put the funds into upgrading his safety program. Walker is one of only a few cases involving assessment of penalties as the result of a terminal audit. It is the first, and only case, where the penalty was not paid and a vehicle was impounded. The enforcement officer has some discretion in granting compliance deadline extensions. Officer Lindsey and his superior, Captain Brown, considered the "attitude of non-compliance" evinced by Walker when they assessed the penalty in this case. Sometimes it requires the actual assessment of a penalty before that attitude is changed. In spite of Walker's assertions that he now has an effective safety compliance program, there were two egregious roadside violation incidents in November of 1995 and another more recent incident shortly before the hearing. In one of the November incidents, a driver was found driving a vehicle that earlier in the afternoon had been placed "out of service" by the DOT inspection officer as the result of defective brakes and other equipment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter its final order finding H. B. Walker, Inc. guilty of violating 49 CFR, parts 391.43 and 391.51, and assessing a civil penalty of $1200. DONE AND ENTERED this 4th day of November, 1996, in Tallahassee, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996.
Findings Of Fact A commercial vehicle owned by Garrett Enterprises of Tampa, Inc. and operated by Respondent Smith entered the weigh station located on I-4 West in Plant City, Hillsborough County, Florida, on August 8, 1991. During the routine inspection, it was discovered that the vehicle's registration had expired on May 31, 1991. The tag on the vehicle clearly bore the expiration date. The statutory legal weight of 35,000 pounds for an expired registration was subtracted from this vehicle's tax class weight of 76,180 pounds to determine the amount by which the vehicle was overweight. A penalty of 5 cents a pound was assessed upon the difference of 41,180 pounds which amounted to a fine of $2,059.00. Respondent Smith has driven commercial vehicles in Florida for seven years. Prior to the registration at issue in this proceeding, he had never purchased an apportioned tag. Although he was originally aware that the apportioned tag he purchased would expire on May 31, 1991, he did not pay attention to the expiration date noted on the tag because he assumed the Department of Highway Safety and Motor Vehicles would mail him a renewal notice prior to its expiration. The Department of Highway Safety and Motor Vehicles does not mail renewal notices to owners of vehicles with apportioned tags. Respondent did not become aware of this variation in the Department's notification policy until after his vehicle was inspected and he had paid the penalty. Respondent had the vehicle registration renewed within ten days after the instant fine was levied.
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final Order be entered finding that the penalty of $2,059.00 was correctly assessed and denying Respondent's request for a refund or a reduction. DONE and ENTERED this 19th day of October, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY 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 19th day of October, 1992. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Florida Department of Transportation 605 Suwanee Street, M.S. 58 Tallahassee, FL 32399-0450 Jesse Smith 114-L Mitchell Road Land O' Lakes, FL 34639 Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458
The Issue The issue presented is whether Respondents' request for a refund of a penalty assessed against them for operating a commercial vehicle with an expired license registration should be granted.
Recommendation Based upon the foregoing Stipulated Facts and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the penalty of $3,000 was correctly assessed and denying Respondents' request for a refund or a reduction. DONE and ENTERED this 27th day of August, 1991, at Tallahassee, Florida. COPIES FURNISHED: LINDA M. RIGOT 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 27th day of August, 1991. Elyse S. Kennedy, Executive Secretary Florida Department of Transportation Commercial Motor Vehicle Review Board 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Florida Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Vernon L. Whittier, Jr., Esquire Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450 William L. Bromagen, Esquire Blackwell & Walker, P.A. 2400 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the demeanor of the witnesses, the following relevant facts are found: At all times pertinent to this proceeding, respondent T.A.S. Auto Sales held independent motor vehicle license #6VI-2652, with a licensed place of business at 117 1/2 Central Avenue in Brandon, Florida. The owner of T.A.S. Auto Sales is Donald Hunt. On May 1, 1985, the Division of Motor Vehicles issued license number 5VI-003620A to T.A.S. Auto Sales for a supplemental location at 312 East Brandon Boulevard in Brandon, Florida. The expiration date on this license was April 30, 1986. Donald Hunt leased the property at 312 East Brand on Boulevard and operated a retail car sales business there until approximately mid-June of 1985. He then decided to sell the business to Clarence W. Jenkins, and entered into an Assignment of Lease on July 1, 1985. According to Mr. Hunt, it was his intent to allow Mr. Jenkins to operate under the supplemental license of T.A.S. Auto Sales while Mr. Jenkins, doing business as Brandon Auto Brokers, obtained his own Florida Dealers License. However, according to Mr. Hunt, said arrangement was to terminate no later than July 28, 1985. A letter setting forth this agreement was received into evidence as respondent's Exhibit 4. From July 1, 1985, through July 28, 1985, Donald Hunt did supervise all title work performed through Brandon Auto Brokers and/or Mr. Jenkins. During July and early August, 1985, Brandon Auto Brokers secured a County occupational license, a Department of Revenue Certificate of Registration to collect sales and use taxes, a reassignment of telephone numbers, an insurance binder, a surety bond and membership in the Florida Independent Automobile Dealers Association. Signage indicating either Brandon Auto Brokers or "under new management" was also placed on the premises, but the date upon which such signage was erected was not established. Lois Jarvis, an inspector with the Division of Motor Vehicles, testified that she spoke on the telephone with Mr. Hunt and Mr. Jenkins on August 9, 1985, and thereafter mailed to Mr. Jenkins an application form for a dealer's license. It was Inspector Jarvis' understanding that Mr. Hunt was allowing Jenkins to operate under Mr. Hunt's supplemental license until such time as Jenkins obtained his own license. On September 4, 1985, she visited the supplemental lot to check on Mr. Jenkins' incomplete application. Her next visit with either Mr. Hunt or Mr. Jenkins occurred on September 23, 1985. At that time, while at Mr. Hunt's lot on Central Avenue, Mr. Hunt informed her that he had nothing more to do with the supplemental lot on Brand on Boulevard, and gave Ms. Jarvis his license for that location. Inspector Jarvis then went over to the supplemental lot and issued a Notice of Violation to Mr. Jenkins/Brandon Auto Brokers for offering, displaying for sale and selling motor vehicles without a license. On September 24, 1985, Ms. Jarvis requested the Department to cancel dealer license 5VI-3620A on the ground that "dealer closed lot and surrendered license." Mrs. Jarvis testified that she did not visit either the supplemental lot or the main lot in July or August of 1985. Her work records for July and August do not reflect a visit to either location. Mr. Hunt, and several witnesses testifying in respondent's behalf, testified that he told Inspector Jarvis in early July that he would have nothing more to do with the supplemental lot beyond July 28, 1985. It was their testimony that Mrs. Jarvis' response was that "there was no way Mr. Jenkins could be issued a license by July 28th, to which Mr. Hunt responded, "that's not my problem." Mr. Hunt admits that he did not specifically request Mrs. Jarvis to cancel his license for the supplemental lot as of July 28th, and that he did not deliver that license to Mrs. Jarvis until September 23, 1985. Based upon the demeanor and possible motives of the witnesses, as well as the documentary evidence received into evidence, it is concluded that Inspector Jarvis did not visit either the supplemental lot or the main lot for which T.A.S. held licenses in June, July or August of 1985. It is further found that Inspector Jarvis did not become aware that Mr. Hunt intended to cease all relationships with the supplemental lot until he delivered the license for those premises to her on September 23, 1985. By statute, an independent motor vehicle license period is from May 1 to April 30 of the following year. Licenses expire annually, "unless revoked or suspended prior to that date." Section 320.27(4), Florida Statutes. The Department has no rule, regulation, policy or established procedure for a licensee to surrender or cancel a license prior to the expiration date. On July 30, 1985, Bruce Reich purchased a 1980 Chevrolet Camero from the Jenkins at the supplemental lot. His checks were made payable to Brandon Auto Brokers. He did not think he was buying a car from T.A.S. or from Don Hunt. On or about September 30, 1985, Mr. Reich filed a Complaint Affidavit against Brandon Auto Brokers regarding this transaction. As of the date of the hearing, Mr. Reich had still not received title to the vehicle he purchased. On August 26, 1985, William S. Ryder purchased a 1981 Van from the Jenkins at the supplemental lot. On or about October 2, 1985, Mr. Ryder filed a Complaint Affidavit against T.A.S. Auto Sales on the ground that he had not received a clear title or plates for this vehicle. He had previously attempted to locate Mr. Jenkins, but was unable to find him.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent be DISMISSED. Respectfully submitted and entered this 31st day of July, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0471 The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 8. Rejected; the evidence demonstrates that respondent intended that its responsibilities with regard to the supplemental lot would terminate on July 28, 1985. Respondent 1 - 3. Rejected in part as improper findings of fact. 4 - 9A. Rejected; not supported by competent, substantial evidence. 9H. Accepted, except that the evidence demonstrates that the Ryder complaint named T.A.S. Auto Sales as the dealer. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel Neil Kirkman Building Room A-432 Tallahassee, Florida 32399-0504 Michael N. Kavouklis, Esquire 419 West Platt Street Tampa, Florida 33606 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
