91-005769 Department Of Transportation vs. Unruh Fab, Inc. Status: Closed Recommended Order on Monday, June 1, 1992.

Summary: Refund of fees an civil penalties for violations of tag registration and fuel tax permit denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

)

Petitioner, )

)

vs. ) CASE NO. 91-5769

)

UNRUH FAB, INC., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before the

Division of Administrative Hearings, by its duly designated Hearing Officer,

Diane Cleavinger, on March 4, 1992, in Pensacola, Florida.

APPEARANCES

FOR PETITIONER: Vernon L. Whittier, Jr.

Assistant General Counsel

Department of Transportation

605 Suwannee Street, M.S. 58

Pensacola, Florida 32399-0458

FOR RESPONDENT: No appearance.

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent correctly assessed a fuel

use tax or civil penalty against Petitioner for violations of Sections 207.004,

and 316.545, Florida Statutes, and Chapter 320, Florida Statutes, for operating

a commercial vehicle on a highway in the State of Florida without vehicle

registration and fuel tax registration to operate in the state.

PRELIMINARY STATEMENT

This cause arose from total penalties of $521.00 levied against Respondent,

Unrah Fab, Inc., by the Department of Transportation for violations of Sections

207.004, and 316.545, Florida Statutes, and Chapter 320, Florida Statutes, for

operating a commercial vehicle without vehicle registration and fuel tax

registration to operate in the state. Respondent requested that the assessment

be refunded. After review, the Department denied Respondent a refund of the

assessment made against it. After notification of the Department's decision,

the Respondent requested a formal administrative hearing. The Respondent's

request was forwarded to the Division of Administrative Hearings.

A Notice of Assignment and Order was issued on September 9, 1991, giving

the parties an opportunity to provide the undersigned with suggested dates and a

suggested place for the formal hearing. The information was to be provided

within ten days of the date of the Notice. This Notice was sent by United

States mail to the Respondent at the address listed in its request for a

hearing. Neither party responded to the Notice.

On November 22, 1992, a Notice of Hearing was issued setting the date,

time, and place for the formal administrative hearing. The Notice of Hearing

was sent by United States mail to the Respondent at the address listed in its

request for a hearing.

Neither Respondent nor its representative appeared at the place set for the

formal hearing on the date and time specified in the Notice of Hearing. The

Petitioner was present at the hearing along with its attorney. The Respondent

did not request a continuance of the formal hearing or notify the undersigned

that it or its representative would not be able to appear at the formal hearing.

After waiting fifteen minutes for the Respondent to appear, the hearing was

commenced.

At the hearing, the Department called two witnesses and offered two

exhibit into evidence.

The Department filed a Proposed Recommended Order on March 18, 1992.

Petitioner did not file a Proposed Recommended Order. The Department's Proposed

Findings of Fact have been considered and utilized in the preparation of this

Recommended Order except where such findings were not shown by the evidence, or

were cummulative, irrelevant, immaterial or subordinate. Specific rulings on

the Department's Proposed Findings of Fact are contained in the Appendix to this

Recommended Order.

FINDINGS OF FACT

1. On June 1, 1991, a commercial vehicle, operated by Unruh Fab, Inc., was

stopped on I-10 in Escambia County, Florida at a Department of Transportation

weight station. The weight station is the last exit in Florida for westbound

vehicles and is the first exit in Florida for eastbound vehicles.

2. The vehicle was not displaying a fuel use tax device, as required by

Section 207.004, Florida Statutes, for its interstate operations and was not

registered to operate in the State of Florida as required by Chapter 320,

Florida Statutes. The driver did not present any fuel use tax registration

documentation or International Registration Plan ( IRP) registration as an

interstate apportioned vehicle.1/

3. The Department of Transportation Inspector issued a temporary fuel use

permit and an I.R.P. trip permit to Respondent to allow the vehicle to proceed

on its way. The total cost of the temporary permits was $75.00. The owner of

the vehicle was assessed a $50.00 civil penalty for violation of Chapter 207,

Florida Statutes. See, Section 316.545(4), Florida Statutes.

4. Additionally, while the truck was at the weight station, the Department

of Transportation Inspector weighed the vehicle. The truck weighed 42,920

pounds. Under Section 316.545, Florida Statutes, Petitioner's vehicle's weight

could not exceed 35,000 pounds. Petitioner's vehicle exceeded the 35,000 pound

legal weight by 7,920 pounds. A penalty of 5 cents a pound was assessed for

each pound over the legal weight resulting in a penalty of $396.00.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this cause. Section 120.57(1), Florida

Statutes.

6. The Department of Transportation has authority to enforce " . . . the

provisions of weight, load, safety, commercial motor vehicle registration and

fuel tax compliance laws. . . ." and levy fines for violation of the relevant

statutes. Section 316.545, Florida Statutes.

7. Section 316.545, Florida Statutes, provides in part:

(4)(a) No commercial vehicle, as defined in

Section 316.003(66), shall be operated over

the highways of this state unless it has been

properly registered under the provisions of

Section 207.004. Whenever any law

enforcement officer identified in Section

207.023(1), upon inspecting the vehicle or

combination of vehicles, determines that the

vehicle is in violation of Section 207.004, a

penalty in the amount of $50 shall be

assessed, and the vehicle shall be detained

until payment is collected by the law

enforcement officer.

(b) In addition to the penalty provided for

in paragraph (a), the vehicle may be detained

until the owner or operator of the vehicle

furnishes evidence that the vehicle has been

properly registered pursuant to Section

207.004. Any officer or agent of the

Department of Transportation may issue an

emergency trip permit and collect the

appropriate fee as provided for in Section

207.004(4). Notwithstanding the provisions

of subsection (6), all permit fees collected

pursuant to this paragraph shall be

transferred to the Department of Highway

Safety and Motor Vehicles to be allocated

pursuant to Section 207.026.

Section 320.0715, Florida Statutes provides for registration of commercial

motor vehicles, engaged in interstate commerce, under the International

Registration Plan. Section 320.0715, Florida Statutes, provides in relevant

part:

(2)(b) . . . In those cases when the

commerical vehicle, as defined in Section

316.003(66), is being operated over the

highways of the state with an expired

registration or with no registration from its

or any other jurisdiction or is not

registered under the applicable provisions of

Chapter 320, the penalty herein shall apply

on the basis of 5 cents per pound on that

weight which exceeds 35,000 pounds. ...

Section 320.02, Florida Statutes provides in part:

(1) Except as otherwise provided in this

chapter, every owner of person in charge or a

motor vehicle which is operated or driven on

the roads of this state shall register the

vehicle in this state. . . .

8. Section 207.004, Florida Statutes, provides in part:

(1)(a) No motor carrier shall operate or

cause to be operated in this state any

commercial motor vehicle, other than a

Florida-based commercial motor vehicle which

travels Florida intrastate mileage only,

which uses special fuel or motor fuel until

such carrier has registered with the

department and has been issued an identifying

device for each vehicle operated. There

shall be a fee of $4 per year or any fraction

thereof for each such identifying device

used. The identifying device shall be

provided by the department and must be

conspicuously displayed on the commercial

motor vehicle while it is being operated on

the public highways of this state. The

transfer of an identifying device from one

vehicle to another vehicle or from one motor

carrier to another motor carrier is

prohibited. . . .

(b) The motor carrier to whom an identifying

device has been issued shall solely

responsible for the proper use of the

identifying device by its employees,

consignees, or lessees.

(4) A motor carrier prior to operating a

commercial motor vehicle on the public

highways of this state must display an

identifying device as required under

subsection (1) or must obtain an emergency or

trip permit or annual permit for that

vehicle. An emergency or trip permit shall

expire within 10 days after date if issuance.

The cost of an emergency or trip permit shall

be $45, which shall exempt the vehicle from

the payment of the motor fuel or special fuel

tax imposed under this chapter during the

term for which the permit is valid. However,

the vehicle shall not be exempt from paying

the fuel tax at the pump.

9. Section 15C-12.004(4), Florida Administrative Code, requires a Fuel Use

Tax Cab Card to be kept in the cab of commercial vehicles. Such cards must be

available for presentation to motor carrier compliance officers or inspectors

upon demand.

10. In this case, Unrah Fab, Inc., received adequate notice of the date,

time and place of the hearing. However, Respondent did not appear at the

hearing and did not present any evidence to rebut the correctness of the

Department's assessments. Therefore, given the above statutes and facts in this

case, Respondent was correctly assessed fees and penalties totaling $521.00

pursuant to Sections 207.004 and 316.545(4), Florida Statutes, and Chapter 320,

Florida Statutes, for not displaying a fuel use tax identifying device and not

having a fuel use tax registration and not having a Florida vehicle registration

or I.R.P. registration when operating on a highway in the State of Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That a Final Order be entered finding that the fee and penalty totaling

$521.00 was correctly assessed Unrah Fab, Inc., by the Department of

Transportation, under provisions of Sections 207.004 and 316.545, Florida

Statutes, and Chapter 320, Florida Statutes.

DONE and ENTERED this 1st day of June, 1992, in Tallahassee, Florida.

_____________________________________

DIANE CLEAVINGER, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the Division

of Administrative Hearings this 1st

day of June, 1992.

ENDNOTES

1/ Florida is not a port of entry state for purposes of commercial motor

vehicle permits. The procedure is that before a vehicle is operated in the

state it must be registered with the State of Florida with a straight license

plate or be registered under the International Registration Plan to operate in

the State of Florida. Also, it has to have fuel use tax permits or registration

in the vehicle. The State of Florida does not allow vehicles to drive to weight

stations to purchase permits to operate in the state.

APPENDIX TO CASE NO. 91-5769

1. The facts contained in paragraphs 1, 2 and 3 of Petitioner Proposed

Findings of Fact are adopted, in substance, in so far as material.

COPIES FURNISHED:

Vernon L. Whittier, Jr.

Assistant General Counsel

Department of Transportation

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary

Department of Transportation

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

ATTN: Eleanor F. Turner, M.S. 58

Thornton J. William, General Counsel

Department of Transportation

Haydon Burns Building, M.S. 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Harley Schmidt, President

Unruh Fab, Inc.

Post Office Box 195

Sedgwick, Kansas 67135

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

final order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the final order in this case.