93-000066 Department Of Transportation vs. M And M Truck Service, Inc. Status: Closed Recommended Order on Tuesday, June 8, 1993.

Summary: Overweight truck crossed ""low limit"" bridge; signs properly posted; reduced penalty appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0066

)

M & M TRUCK SERVICE, INC., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard on stipulated facts

before the Division of Administrative Hearings by its duly designated Hearing

Officer, Daniel M. Kilbride, on April 2, 1993, in Tallahassee, Florida. The

following appearances were entered:

APPEARANCES

For Petitioner: Paul Sexton, Esquire

Assistant General Counsel

Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Respondent: Gary E. Moses

President

M & M Truck Service, Inc.

313 Shadow Oak Drive

Casselberry, Florida 32707

STATEMENT OF THE ISSUES

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.

PRELIMINARY STATEMENT

On June 3, 1992, Respondent's employee was issued a citation which alleged

that Respondent's truck was overweight when it crossed a "low limit" bridge. A

fine was imposed which was paid, and the vehicle was permitted to proceed.

Respondent objected to the violation and requested that the Commercial Motor

Vehicle Review Board revoke or cancel the penalty. The Board modified the

penalty and Respondent requested a formal hearing pursuant to Chapter 120. This

matter was referred to the Division of Administrative Hearings for formal

hearing on January 6, 1993. Following the parties response to the Initial

Order, this matter was reassigned to the undersigned and set for hearing.

During this time period, the parties initiated discovery. Prior to the

date scheduled for the formal hearing, the parties agreed to execute a joint

stipulation for entry of a recommended order on stipulated facts. The Joint

Stipulation was filed on March 29, 1993, which included the stipulated facts.

The Order granting the motion was entered on April 2, 1993. The parties

submitted proposed findings of fact, conclusions of law, and written argument on

April 23, 1993 and April 26, 1993, respectively.

Based upon the stipulated facts as agreed to by the parties, the following

findings of fact are determined:

FINDINGS OF FACT

1. 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.

2. 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.

3. 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.

4. On that date, the maximum weight for vehicles was reduced to a limit of

56,000 pounds.

5. 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.

6. 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.

7. After the vehicle crossed the bridge, it was stopped by a Department

Transportation Officer, and taken to a nearby pit scale.

8. The weight of the vehicle was accurately determined to be 56,140 ponds.

9. 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.

10. 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.

11. 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):

o Just east of I-95: "Weight Limit Last Exit"

o Just west of I-95: "Weight Limit" (no distance to bridge stated)

o 2 miles east of the bridge and just east of SR 524: "Weight Limit 2

Miles"

o 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"

12. 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.

13. 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.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the

subject matter of this proceeding, and the parties thereto, pursuant to

subsection 120.57(1), Florida Statutes.

15. Section 316.545, Florida Statutes, provides in pertinent part:

(3) Any person who violates the overloading

provisions to have damaged the highways of

this state by reason of such overloading,

which damage is hereby fixed as follows:

. . .

(b) Five cents per each pound of weight in

excess of the maximum herein provided when the

excess weight exceeds 20 pounds. . . .

16. Section 316.555, Florida Statutes, provides in pertinent part:

. . .[T]he Department of Transportation with

respect to state roads. . .may prescribe, by

notice hereinafter provided for, loads and

weights and speed limits lower than the limits

prescribed in this chapter and other laws,

whenever in its. . .judgement any road or part

thereof or any bridge or culvert shall, by

reason of its design, deterioration, rain, or

other climactic or natural causes be liable to

be damaged or destroyed by motor vehicles,

trailers, or semitrailers, if the gross weight

or speed limit thereof shall exceed the limits

prescribed in said notice. . . .The notice or

substance thereof shall be posted at

conspicuous places at terminals of all

intermediate crossroad and road junctions with

the section of highway to which the notice

shall apply. After any such notice has been

posted, the operation of any motor vehicle or

combinations contrary to its provisions shall

constitute a violation of this chapter.

17. The stipulated facts show that the Department posted the notice of

reduced weight limits for the bridge in accordance with the requirements of

Section 316.555, and that M & M's truck subsequently exceeded those limits in

violation of that statute.

18. M & M's reliance on the manner in which weight limit signs were posted

on the west side of the bridge is misplaced. The vehicle was headed westbound

on the highway, and it was the signs on the east side of the bridge that are at

issue. The statute does not require an indication of mileage to a low-weight

bridge, nor does it require a "last exit" notice. The stipulated facts show

that the signs on the east side of the bridge satisfied MUTCD requirements. The

fact that the Department may have exceeded statutory and MUTCD requirements by

posting additional signs on the west side of the bride is not relevant.

18. In addition, although the stipulated facts indicate that SR 520 was

under construction, the evidence did not indicate that the posted signs were

obscured. Therefore, the requirements of Section 316.555 have been met, and the

fine was properly imposed.

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

[phone]

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 their 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.