STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CANOE CREEK SERVICE PLAZA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-545RP7

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

FINAL ORDER

The Petitioner, Canoe Creek Service Plaza, Inc., has filed a Petition for Determination under the provisions of Section 120.54(4), Florida Statutes.

Petitioner is seeking a determination that Proposed Rules 14-83.11(5) and 14-

1. of the Florida Department of Transportation constitute invalid exercises of delegated legislative authority. An Order of Assignment was entered by the Director of the Division of Administrative Hearings on March 4, 1983. The final hearing was conducted on April 4, 1983, in Tallahassee, Florida.

   
   

   At the final hearing, the parties entered into a factual stipulation. Charles H. Owen, the Assistant Director of Maintenance for the Department of Transportation, testified on behalf of the Department. Department Exhibit 1 was received into evidence. Petitioner has submitted a post-hearing legal memorandum.

   
   

   Subsequent to the filing of the Petition, and prior to the hearing, the Department modified its Proposed Rule 14-83.12. The modification cures the alleged defects asserted by Petitioner. Accordingly, Petitioner withdrew its challenge to Proposed Rule 14-83.12.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner is presently operating a service station on Florida's Turnpike as a sublessee under a lease with the Department of Transportation.

      The service station is located at the Canoe Creek Plaza. The present lease will soon expire, and Petitioner desires to bid for the lease of a service station at the plaza. In addition, the Petitioner is interested in bidding for leases of service stations at other plazas on the Turnpike.

      
      

   2. There are seven service plazas located along the Florida Turnpike. The plazas are configured in the shape of a football and are located in the middle of the roadway, so that they are accessible to traffic from both directions. Each of the service plazas includes at least one automobile service station and a restaurant. Three of the service plazas house two automobile service stations. At these three plazas, the restaurant is located in the middle, with service stations on each side. The service stations are operated by private vendors under lease agreements with the Department of Transportation.

   3. Department of Transportation Proposed Rule 14-83.11 sets standards for lease agreements for the operation of service stations along the Florida Turnpike. Proposed Rule 14-83.11(5) provides:

      
      

      Where an award of the lease to the highest bidder would result in the motor fuel identified by the trade- marks, trade names, or brands of any one supplier, distributor, or retailer of such fuel being sold at more than one service station at the same ser- vice plaza, the Department shall afford the bidder an opportunity to provide

      a motor fuel that will not result in the motor fuel identified by the trademarks, trade names, or brands of any one supplier, distributor, or retailer of such fuel being sold at more than one service station at the same service plaza. If the bidder cannot secure a motor fuel which will result in compliance with this sub-

      section, the Department may award to the next highest bidder or reject all bids for that service station and re-solicit bids in accordance with Rules 14-83.06 and 14-83.07. To determine which

      bidder or bidders will be afforded an opportunity to provide a motor fuel identified by different trademarks, trade names or brands, the Department shall first determine the total revenue to the Department which each bid will realize. Total revenue will be determined by multiplying the pre- vious fiscal year's total gallonage for each service station times the amount per gallon bid by the bidder for that service station. The bidder whose bids would return the least revenue to the Department shall be afforded an opportunity to provide a motor fuel identified by different trademarks, trade names or brands.

      
      

      The effect of the proposed rule is to prohibit the sale of the same motor fuel product at both service stations at those service plazas which include two service stations.

      
      

   4. Since the Florida Turnpike first opened in 1956, the Department has never allowed the same brand of motor fuel products to be sold at both stations at two-station service plazas. In the past, the Department has enforced this policy by refusing to enter into lease agreements that would result in the policy being violated. The Department is now seeking to embody this long- standing policy in a rule which also describes how the Department will make lease selections in order to enforce the policy. There are two basic rationales for the policy. First, the motoring public is best served by a system which

      offers as many different brands of gasoline as possible. The motoring public is brand-conscious, and many motorists desire to use only specific brands of gasoline. Since the number of service stations on the Turnpike is limited, the Department has sought to offer the broadest range of brands possible. The second rationale for the policy is that it helps to improve traffic flows to the service plazas. If the same brand of fuel were offered at both stations in a plaza, there would be very little incentive for motorists to drive to the second station rather than stopping at the first. Congestion and a reduction of efficiency are a likely result.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120,54(4), Florida Statutes.

      
      

   6. Petitioner contends that the Department's proposed rule exceeds the scope of the Department's rule-making authority and operates to amend a statute that deals with the same subject matter. The proposed rule purports to implement the provisions of Section 340.12(1), Florida Statutes. The paragraph provides:

      
      

      The department is hereby empowered to fix, revise, charge and collect tolls and charges for the use of each pro- ject and the different parts or sec- tions thereof, to contract with any person, partnership, association or corporation desiring the use of any part thereof for the purpose of pro- viding any of the facilities compre- hended in the term "turnpike project" as defined herein, when, in the opinion of the department, such facil- ities are necessary or desirable, and to fix the terms, conditions, rates and charges for use; provided, that facilities for motor fuel and food shall be publicly offered for the operation thereof under rules and regulations to be established by the department. Such tolls shall not be subject to supervision or regulation by any other commission, board or

      agency of the state. [Emphasis supplied.]

      
      

      In addition to this specific grant of rule-making authority, the Department has authority to promulgate rules for turnpike projects [Section 340.06(9), Florida Statutes] and to build and operate the state highway system [Section 334.02(6), Florida Statutes].

      
      

   7. Petitioner contends that the proposed rule runs afoul of the provisions of Section 340.12(2), Florida Statutes. The paragraph provides:

      
      

      To afford users of any turnpike pro- ject a reasonable choice of motor fuels of different brands, each gaso-

      line service station or site therefor shall be separately offered for lease upon sealed bids for private operation and, after at least 4 weeks' notice

      of the offer has been published in a newspaper having general circulation in the state, each such lease shall be awarded to the highest responsible bidder therefor, who may provide for the operation of the service station

      by a third person; but no person shall be awarded or have the use of, nor shall motor fuel identified by the trademarks, trade names, or brands of any one supplier, distributor, or retailer of such fuel be sold at, more than one service station if the pro- posed lessee has control of, or if the brand of motor fuel proposed is sold at, more than 50 percent of the ser- vice stations on the turnpike project

      
      

      This paragraph basically prohibits the offering of one brand of motor fuel product at more than 50 percent of the service stations on the Turnpike.

      Petitioner's argument is that since the Legislature has adopted a specific standard designed to assure a reasonable variety of brands being offered, the Department is without authority to deal further with the subject. The contention is without merit. Powers delegated by the Legislature to administrative agencies include both express powers and those given by clear and necessary implication. Coca-Cola Company, Food Division v. Department of Citrus, 406 So.2d 1079 (Fla. 1981).

      
      

   8. The Department of Transportation has not been delegated express authority by the Legislature to adopt the rule at issue. In order to determine whether the Department has the implied authority, it is necessary to examine the purposes of the statutory provisions. The Legislature intended to grant to the Department of Transportation power sufficient to enable the Department to carry out broad objectives enunciated in the statutes. It was the legislative intent to leave specific details to be determined by reasonable rules promulgated by the Department. Section 334.02(6), Florida Statutes. While the Legislature set some specific standards designed to afford turnpike users with a reasonable choice of motor fuels of different brands, nothing in the statute prohibits the Department from pursuing that policy to a greater extent. The Department's proposed rule not only enhances the specifically stated legislative objectives, it serves to make the operation of service plazas more efficient. Given the salutary purpose of the legislation and the fact that the rule is designed to meet that purpose, the refining of the legislation is within the agency's authority. Coca-Cola Company v. Department of Citrus, supra; State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (1 DCA Fla. 1981). An agency should be accorded wide discretion in the exercise of its rule-making authority which is consistent with the agency's statutory duties. Florida Commission on Human Relations v. Human Development Center, 413 So.2d 1251 (1 DCA Fla. 1982).

      
      

   9. Proposed Rule 14-83.11(5) constitutes a valid exercise of delegated legislative authority.

FINAL ORDER

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

ORDERED:

Department of Transportation Proposed Rule 14-83.11(5) constitutes a valid exercise of delegated legislative authority, and the Petition for administrative determination filed by Canoe Creek Service Plaza, Inc., is hereby dismissed.

DONE AND ORDERED this 3rd day of May, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1983.

COPIES FURNISHED:

Frederick J. Ward, Esquire Giles, Hedrick & Robinson, P.A. Post Office Box 2631

Orlando, Florida 32802

John Beck, Esquire

Mark A. Linsky, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32301

Carroll Webb, Esquire Executive Director

Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud, Chief Administrative Code Bureau Department of State

The Capitol, Suite 1802 Tallahassee, Florida 32301

Docket for Case No: 83-000545RP

Orders for Case No: 83-000545RP